UC-NRLF 


$B  n  bbs 


GIFT 
FEB  23  1916 


■>A(v 


GIFT   OF 


^1 


^^^ 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/ancienthebrewlawOOsulzrich 


THE 

ANCIENT  HEBREW  LAW 
OF  HOMICIDE 


BY 

MAYER   SULZBERGER 


PHILADELPHIA 
JULIUS   H.    GREENSTONE 


^% 


PRINTED   IN   ENGLAND 
AT   THE   OXFORD   UNIVERSITY    PRESS 


\  •/•  >• ';  :  ^^t'     \  •' 


» \  :  '•  :  • 


The  following  lectures  were  read  before  the 
Dropsie  College  for  Hebrew  and  Cognate 
Learning  in  the  months  of  March  and  April, 
191 3.  They  belong  to  a  series  of  studies  in 
Jewish  Jurisprudence  and  Institutes  of  Govern- 
ment, two  of  which  have  been  heretofore  pub- 
lished, to  wit,  *  The  Am  Haaretz — the  Ancient 
Hebrew  Parliament',  1910,  and  'The  Polity  of 
the  Ancient  Hebrews',  191 2.  My  thanks  are 
due  to  Dr.  Julius  H.  Greenstone,  who  has 
prepared  the  careful  indices  to  the  volume. 

M.  S. 


328559 


THE  ANCIENT  HEBREW  LAW  OF  HOMICIDE^ 

I 

The  law  of  homicide  is  an  index  to  certain  sides  of 
national  character.  Where  there  is  a  small,  powerful  class 
able  to  monopolize  rule  and  government,  the  rights  of  the 
great  mass  of  common  people  are  weak  and  ill-assured. 
In  such  a  society  there  is  much  violence.  Arrogant  and 
turbulent  spirits  are  in  perpetual  rivalry,  and  compete  for 
mastery.  The  stronger  steadily  eliminate  the  weaker.  Life 
is  held  cheap.  The  chiefs,  who  are  always  risking  their 
own  lives,  compel  their  underlings,  who  have  no  great  stake 
in  the  contest,  to  risk  theirs.  It  is  a  kind  of  feudal  system, 
in  which  each  chief  is  the  head  of  a  clan  or  other  organiza- 
tion with  whose  aid  he  hopes  to  retain  or  to  achieve 
pre-eminence. 

Out  of  such  a  condition  the  early  laws  of  homicide  arise. 

Clans  in  juxtaposition  are  never  quite  at  peace  with 
€ach  other.  There  may  be  a  kind  of  truce,  but  this  is  liable 
to  be  broken  at  any  moment.  The  murder  of  a  clansman 
by  a  member  of  another  clan  is  castts  belli,  for  the  sufficient 
reason  that  it  weakens  the  assailed  clan.  If  unpunished, 
the  act  tends  to  be  repeated,  and  this  process  would,  in 
a  relatively  short  time,  bring  the  weakened  clan  under 
subjection  to  the  aggressor  clan. 

*  A  course  of  five  lectures  delivered  before  the  Dropsie  College  for 
Hebrew  and  Cognate  Learning,  March  31,  April  3,  7,  10,  and  14,  1913. 

I  B 


2  THE* 'ANCIENT    HEBREW    LAW    OF    HOMICIDE 

In  such  a  state  of  society  the  law  of  retaliation  (the  lex 
talionis)  becomes  inevitable.  The  assailing  clan  must  be 
weakened  as  much  as  the  assailed,  if  the  latter  is  to  retain 
its  relative  strength  and  position.  What  we  call  lex  talionis 
is  therefore,  primarily,  a  means  for  the  defence  of  the  clan^ 
an  inter-clan  rule.  It  is  one  of  the  early  stages  of  what  we 
now  call  international  law,  which  even  yet  knows  no  final 
arbitrament  but  the  sword. 

The  period  when  this  rule  began  to  be  applied  antedates 
even  primitive  history.  We  know  of  no  stage  in  which 
men  did  not  form  a  kind  of  society,  however  small  or  rude 
it  may  have  been.  And  so  soon  as  this  point  has  been 
reached,  individual  action  ceases  to  be  unrestrained,  and 
must  accept  limitations  useful  for  society.  A  member  of 
the  blood-covenant  may  no  longer  slay  his  fellow-member. 
However  determined  his  purpose,  the  hatan  damim  (member 
of  the  blood-covenant  guild)  must  forgo  it  when  he  learns 
that  the  intended  victim  is  also  a  member  (Exod.  4.  24-6).^ 

1  The  text,  Exod.  4. 23-6,  is  of  great  antiquity.  It  refers  to  an  early  state 
of  the  law  in  which  for  certain  offences  the  penalty  of  death  is  imposed 
on  the  eldest  son  of  the  criminal.  If  Pharaoh  will  not  let  the  people  go, 
if  he  will  enslave  JHVH's  first-born  {hekor\  then  JHVH  will  slay  his 
first-born  {hekor).  This  is  the  primitive  lex  talionis,  traces  of  which  are 
clear  in  the  Hammurabi  Code,  §§  116,  aio,  and  230. 

This  denunciation  of  punishment  against  Pharaoh  by  killing  his  first- 
bom  son  brings  to  the  writer's  mind  an  incident  in  the  life  of  Moses  which 
he  then  proceeds  to  relate.  Moses  has  been  guilty  of  some  delinquency 
which  was  doubtless  plainly  told  in  the  old  narrative  but  is  here  omitted. 
The  Rabbis  inferred  that  when  Moses  married  the  daughter  of  Jethro,  the 
latter  as  a  condition  of  his  assent  stipulated  that  the  first-born  son  of  the 
union  should  be  brought  up  as  a  Gentile.  Hence  the  boy  Gershom  was 
not  circumcised  (Ginzberg,  Legends  of  the  Jews,  vol.  II,  p.  328).  As  JHVH 
claimed  the  first-born  of  all  Israel  as  his,  the  failure  of  Moses  to  circumcise 
Gershom  was  to  be  punished  by  the  death  of  the  latter.  The  quick  mother- 
wit  of  Zipporah  saved  the  situation.  She  circumcised  the  boy,  cast  the 
foreskin  at  JHVH's  feet  uttering  (for  the  boy)  the  proper  formula:  *  Now 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  3 

From  the  very  beginning   of  organized  society,  there 
must  have  developed  two  sets  of  laws,  one  for  those  within    / 
and  the  other  for  those  without  the  clan.     The  latter  is    ^ 
simple  and  short.     A   member  of  clan  A  has  weakened 
clan  B  by  killing    one    of  its    members.      Clan  B    must 
retaliate  by  weakening  the  aggressor  clan  at  least  as  much. 

This  policy,  however  wise  as  against  another  clan,  would 
be  ruinous  if  applied  within  the  clan.  One  member  has 
killed  another,  and  has  thereby  reduced  the  strength  of  the 
clan.  If  the  aggressor  be  killed,  its  strength  is  further 
reduced.  The  direct  clan-interest  is  that  the  aggressor 
be  kept  alive,  unless  he  is  likely  to  further  imperil  the 
community.  It  is  this  contingency  which  creates  a  necessity 
for  devising  a  lesser  punishment  than  death  for  homicide 
within  the  clan,  and  hence  is  evolved  the  system  of  imposing 
a  money  penalty  on  the  homicide — wergild.  It  is  this 
contingency,  too,  which  creates  a  necessity  for  ascertaining 
the  circumstances  of  the  tragedy  and  its  underlying  motive. 
Hence  follows  a  subdivision  of  homicide  into  murder,  which 
even  within  the  clan  may  continue  to  be  a  capital  offence, 
and  manslaughter,  which  may  readily  be  compounded  for. 

Two  systems  of  homicide  law  are  thus  made  more  or 
less  co-existent:  an  external  homicide  law,  which  is  the 
lex  talionis^  a  kind  of  war,  and  an  internal  homicide  law, 
which  seeks  to  ascertain  the  very  right  of  each  case — what 
we  would  call  justice. 

This  CO- existence  of  two  discordant  systems  of  law  in 
each  of  the  many  clans  composing  a  state  or  kingdom,  tends 

art  thou  of  blood-covenant  {hatan  dantim)  with  me  !  *  JHVH  forbore  his 
purpose.  And  then  follows  the  explanation  that  circumcision  constitutes 
blood-covenant,  with  the  necessary  implication  that  blood-covenantees  may 
not  for  any  cause  kill  each  other. 

B  2 


4  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

Steadily  to  undermine  the  lex  talionis.  With  the  progress 
of  the  state,  the  relations  of  its  several  parts  become 
closer  and  closer,  and  the  comity  between  them  increases. 
The  justice  of  the  internal  law  becomes  more  and  more 
apparent,  and  with  the  growth  of  peaceful  relations  between 
the  several  clans,  the  idea  of  the  unity  of  the  state  is 
strengthened.  The  feeling  which  individuals  had  for  their 
clan  is  gradually  transferred  to  the  state  or  kingdom,  and 
it  is  seen  that  all  the  clans  together  constitute  one  great 
clan,  which  is  called  the  state.  When  this  point  is  reached 
the  lex  talionis  dies  a  natural  death. 

This  progress,  though  curtly  described,  is  very  slow, 
and  is  reached,  not  by  a  leap,  but  by  slow  stages.  For 
long  ages  the  lex  talionis  continues  to  be  recited  as  regulating 
the  relations  of  men  within  the  clan,  and  yet  it  is  all  the 
while  undergoing  decomposition.  The  Code  of  Hammurabi, 
if  taken  literally,  would  present  a  shuddering  spectacle. 
Its  notions  of  retaliation  betoken  fierce  barbarism.  It  is 
reasonably  certain,  however,  that  in  very  early  times  its 
crude  literalness  was  modified,  and  that  the  law  as  ad- 
ministered in  later  ages  was  far  different  from  the  bald 
meaning  of  its  words.  The  marked  intermediate  stage, 
which  is  most  important  in  the  consideration  of  our  subject, 
may  be  called  the  wergild  stage,  or,  to  use  the  Hebrew 
term,  the  kofer  stage. 

When  a  kingdom  has  travelled  a  certain  distance  on 
the  road  to  unity,  it  perceives  that  a  state  of  war  between 
its  parts,  however  mild  or  modified,  is  injurious  to  its 
progress.  The  same  necessity  which  compelled  the  clan 
to  work  out  an  internal  homicide  law  milder  than  the 
external  homicide  law,  presses  upon  the  state.  For  its 
purposes  the  several  clans  cannot  be  hostile  to  each  other, 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  5 

but  must  constitute  one  great  national  family.  The  dis- 
tinction between  external  homicide  law  and  internal 
homicide  law  cannot  exist  for  it.  Human  nature,  however, 
is  more  powerful  than  governmental  logic ;  ancient  notions 
and  customs  are  not  to  be  done  away  with  in  a  day,  nor 
can  hereditary  feuds  be  converted  into  brotherly  feeling 
by  mere  fiat.  Force  is  necessary,  and  the  growing  state 
exerts  it  to  prevent  bloody  inter-clan  feuds.  The  first  mode 
of  prevention  is  always  the  insistence  on  zvergild  between 
the  two  clans,  that  is,  the  injured  clan,  instead  of  going 
to  war,  must  accept  a  money  composition  for  the  loss  of 
its  member.  The  central  state  must,  however,  have  acquired 
great  stability  and  power  before  it  can  effect  this  end. 

When  this  stage  is  reached,  the  kingdom  has  surmounted 
a  danger  leading  to  disintegration.  By  way  of  compensation^ 
perhaps,  this  improvement  leads  to  another  danger.  Wealth 
has  acquired  a  new  force.  It  now  enables  its  owner  to  kill 
the  member  of  another  clan  with  much  less  danger  to  his 
own  life  than  before.  With  the  growth  of  a  state's  wealth 
this  peril  grows  more  and  more  formidable.  Hired  assassins 
will  form  a  class,  and  individual  safety  will  be  greatly 
impaired.  The  weakness  of  the  kofer  system  will  become 
more  and  more  apparent,  and  the  moral  power  of  the 
internal  homicide  law  will  make  its  way. 

When  the  proper  point  is  reached,  the  state  overthrows 
the  kofer  law  and  substitutes  for  it  the  inquiry  into  the 
circumstances  and  motive  of  every  homicide,  which  results 
in  the  doctrine  that  homicide  is  so  great  an  offence  against 
the  state  that  the  private  wrong  is  submerged,  and  that 
it  is  incapable  of  private  composition,  no  matter  what  the 
reparation  offered.  Then  only  is  the  state  fully  organized 
to  carry  on  a  civil  government. 


6  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

We  have  no  adequate  means  to  ascertain  when  the 
pre-Hebraic  inhabitants  of  Palestine  passed  through  these 
stages.  The  probability  is  that  long  before  they  were 
conquered  by  the  Hebrews  they  had  reached  the  wergild 
stage. 

The  Code  of  Hammurabi  of  Babylonia  {circa  2250  B.  C.) 
has  as  yet  no  general  state-law  punishing  homicide.  This 
crime  must  therefore  have  been  under  the  jurisdiction  of 
recognized  constituent  elements  of  the  state,  such  as  clans 
or  the  like,  which  severally  protected  their  clansmen's  lives 
against  assault  from  without  and  within.  There  are  indi- 
cations that  the  kofer  stage  had  been  reached. 

The  Hebrew  tradition  is  that  the  state  was  formed  at 
the  crossing  of  the  Jordan ;  and  by  the  formation  of  the 
state  we  mean  that  every  male  Israelite  became  a  member 
of  a  great  national  blood-covenant  which,  theoretically  at 
least,  overrode  all  ties  of  family,  clan,  or  tribe.  At  Gilgal, 
before  the  campaign  for  the  conquest  of  Canaan  began, 
this  great  covenant  between  all  Israel  and  JHVH  was 
entered  into  (Josh.  5.  2-9).  Pesah  was  celebrated  (5. 10-12), 
and  JHVH,  by  special  messenger  {sar-seba-J H  V H)^  ratified 
the  covenant,  and  in  symbolical  language  welcomed  the 
new-comers  to  the  land  of  JHVH,  which  had  become  holy 
in  fact  by  the  entrance  of  the  covenant  people. 

In  the  course  of  lectures  delivered  before  this  College 
last  year,  my  endeavour  was  to  show  that  the  pre-Hebraic 
inhabitants  of  Palestine  were  politically  organized  into 
small  city-kingdoms ;  that  the  Hebrews,  when  they  con- 
quered the  land,  accepted  the  system,  but  did  away  with 
the  kings,  converting  the  petty  kingdoms  into  cantons  or 
districts,  which  continued  to  be  called  cities  (arim)^  and 
that  these  became  the  constituent  elements  of  the  Hebrew 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  7 

State,  abolishing,  in  theory  at  least,  the  former  dividing 
lines  of  family,  clan,  and  tribe. 

The  process  of  forming  this  new  Hebrew  state  lasted 
for  more  than  two  centuries.  The  settlers  advanced  further 
and  further,  coming  into  closer  and  closer  contact  with  the 
natives.  Ancient  Canaanite  modes  of  thought  impregnated 
the  settlers'  minds,  and  both  in  religion  and  in  law  Canaanite 
views  struggled  with  Hebraic  principles.  How  bitter  the 
contest  was  the  whole  Hebrew  literature  shows.  Though 
in  the  view  of  practical  statesmen  Hebraism  in  the  end 
triumphed,  both  in  church  and  state,  yet  the  idealists  were 
so  dissatisfied  with  the  Canaanitic  alloy,  which  always  more 
or  less  manifested  itself,  that  a  reader  of  the  prophetic 
discourses  might  almost  be  misled  into  believing  that  Baal 
had  borne  off  the  victory  from  JHVH,  and  that  the  ancient 
codes  had  crowded  out  the  Torah. 

Our  present  task  is  to  show  the  contest  between  the 
Hebrew  law  on  the  one  side,  and  the  Canaanite  practice 
on  the  other ;  to  point  out  that  the  zikne  ha-ir,  infected 
as  they  were  with  the  old  Canaanite  notions  and  practices, 
had  to  be  restrained  and  corrected,  at  first  by  federal 
delegates,  and  when  this  measure  proved  inadequate,  had 
to  be  deprived  of  large  and  important  items  of  legal  juris- 
diction, which  were  transferred  to  federal  courts,  and  then 
to  make  clear  that  for  the  unity  of  the  state  it  finally 
became  necessary  to  deprive  the  zihie  ha-ir  of  all  important 
judicial  functions,  and  to  establish  a  complete  system  of 
federal  courts,  sitting  in  every  Hr^  and  thus  bringing  the 
Hebrew  law  home  to  every  corner  of  the  kingdom. 

In  the  investigation  of  this  movement  we  have  chosen 
to  begin  with  the  law  of  homicide,  not  only  because  of  its 
fundamental  importance,  but  also  because  the  Torah  gives 


8  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

fuller  and  more  detailed  information  on  this  branch  of 
jurisprudence  than  on  any  other  subject  of  the  criminal 
law.  This  valuable  feature  of  the  Tor  ah  must  not,  however, 
blind  us  to  the  fact  that  its  statement  of  the  law  on  any- 
subject  is  not  exhaustive.  The  Hebrews  had  for  ages  lived 
a  settled  pastoral  life  in  a  portion  of  the  Egyptian  kingdom 
expressly  assigned  to  them.  While  subject  to  the  laws 
of  the  Empire,  they  had  a  numerous  community  of  their 
own,  among  whom  grew  customs  and  observances  which 
were,  in  effect,  a  kind  of  internal  law.  The  tradition  was 
that  they  were  governed  by  elders.  At  the  very  beginning 
of  the  public  career  of  Moses  and  Aaron,  they  submitted 
their  plans  to  this  body  (Exod.  4.  29-30;  12.  21 ;  17.6;  19.  7). 

The  oral  or  customary  law  which  thus  naturally  grew 
among  the  Hebrews  in  Egypt  is  nowhere  recorded.  It  was 
a  Torah  she-be  al  peh,  which,  with  them,  as  with  all  other 
nations,  preceded  any  written  code.  Nor  did  the  written 
code,  Torah  she-bi-ktab,  when  it  came,  stop  the  further 
development  alongside  of  it,  of  the  old  Torah  she-be'^al  peh. 
New  and  unforeseen  circumstances  would  arise  which  had 
to  be  met  by  the  tribunals,  and  their  decisions,  from  the 
time  when  the  Oracle  took  jurisdiction  of  certain  cases 
down  to  the  latest  period  when  judges  of  ordinary  law- 
courts  presided,  constituted  an  ancillary  body  of  oral  or 
common  law. 

We  are  not  without  specific  evidence  on  this  subject. 
An  examination  of  the  texts  of  the  Pentateuch  relating 
to  homicide  discloses  the  fact  that  their  contents  are  of 
two  diverse  kinds,  one  of  them  being  in  the  dogmatic  form 
of  mishpatim  (statutes),  and  the  other  of  them  torot^  or 
summaries  of  the  facts  and  the  law  of  cases,  in  the  manner 
of  the  syllabi  of  our  law  reports. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  9 

Nor  is  this  a  peculiarity  of  the  law  of  homicide.  There 
are  in  the  Torah  at  least  four  other  instances  of  reported 
cases:  the  case  of  the  blasphemer  of  the  Shem  (Lev.  24. 
10-16),  that  of  the  Sabbath-breaker  (Num.  15.  32-6),  that  of 
Zelophehad's  daughters  (Num.  27.  i-ii),  and  the  second 
case  of  Zelophehad's  daughters  (Num.  36.  i-io).  In  each 
of  these  the  facts  are  narrated  and  the  principle  of  the 
decision  announced  for  guidance  in  the  future.  They 
constitute  what  we  call  case-law,  as  distinguished  from 
statute  law,  and  what  the  Hebrews  call  Tahmid,  in  contra- 
distinction to  mishpatim  or  Torah.  The  memory  and  results 
of  this  steady  accumulation  of  case-law  during  a  period  of 
perhaps  fifteen  hundred  years  are  preserved  to  a  small 
degree  in  the  Bible,  and  to  a  much  greater  degree  in  the 
Talmud.  It  is  to  be  hoped  that  studies  in  the  vast  field 
of  Talmudic  literature  may  give  us  light  on  many  subjects 
of  which  we  are,  at  present,  wofuUy  ignorant.  We  are  not 
able  to  show  the  contents  of  the  ancient  pre-Mosaic  oral 
law,  and  cannot  therefore  pretend  to  give  its  provisions 
in  relation  to  homicide.  It  is,  however,  fair  to  assume  that 
the  written  law  was,  in  the  main,  declaratory  of  the  oral 
law  that  immediately  preceded  it.  Such,  indeed,  is  the 
history  of  law  in  all  ages  and  among  all  peoples.  The 
human  nature  of  great  masses  of  people  prevents  the  sudden 
overturning  of  a  body  of  ancient  habits  by  mere  fiat,  and 
the  substitution  for  them  of  strange  customs  contrary  to 
inherited  notions. 

It  is  from  the  written  law — from  the  Torah — that  we 
must  learn  the  law  of  homicide  :  what  constitutes  the  offence, 
how  the  perpetrator  is  to  be  ascertained,  and  when  ascer- 
tained, how  he  is  to  be  punished. 

Each  of  the  five  books  of  the  Torah,  from  Genesis  to 


lO  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

* 

Deuteronomy,  contains  passages  bearing  on  these  interesting 
questions.  The  references  in  Genesis  are  most  widely- 
known  and  quoted,  not  because  they  are  parts  of  any  legal 
code,  properly  so  called,  but  because  they  announce  broad, 
general  principles,  the  result  of  philosophical  reflection,  and 
therefore  appeal  to  a  large  circle  who  would  be  repelled 
by  a  statement  of  practical  law.  From  their  nature  they 
are  fitter  for  consideration,  after  we  shall  have  made  a  study 
of  the  book,  than  as  an  aid  in  the  preliminary  work. 

It  is  from  an  examination  of  all  this  material  that  we 
are  to  learn  the  Hebrew  law  of  Homicide.  This  study 
would,  however,  be  but  partial  and  imperfect  unless  we  shall 
at  the  same  time  endeavour  to  ascertain  the  state  of  the 
law  upon  that  subject  among  the  people  whom  the  Hebrews 
conquered.  For  this  there  are  but  two  sources :  one  the 
Hebrew  law  itself,  in  so  far  as  it  discloses  the  nature  of 
the  native  law  which  it  was  combating,  and  the  other 
the  code  of  Babylonian  law,  known  as  the  Hammurabi  Code, 
said  to  have  been  promulgated  by  Hammurabi,  King  of 
Babylon,  about  2250  B.C.  It  was  in  the  year  1902  that 
M.  de  Morgan,  while  excavating  the  acropolis  of  Susa, 
found  three  large  fragments  of  a  block  of  black  diorite. 
When  joined,  they  formed  a  pillar  about  seven  feet  high, 
and  tapering  from  seventy-one  inches  to  sixty-two  inches. 
At  the  upper  end  of  the  front  side  was  a  bas-relief 
representing  the  seated  sun-god  Shamash,  presenting  the 
code  of  laws  to  Hammurabi.  Then  follow  on  the  same 
side  sixteen  columns  of  writing,  and  on  the  reverse  side 
twenty-eight  columns.  On  the  front  side  five  columns  of 
writing  have  been  erased.  When  complete  the  inscription 
probably  contained  forty-nine  columns,  four  thousand  lines, 
and  about  eight  thousand  words.    It  is  from  this  inscription 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  11 

in  the  Babylonian  language  that  the  Code  has  been  carefully- 
studied  by  experts,  many  of  whom  beheve  that  it  exerted 
a  powerful  influence  in  shaping  legal  doctrines  and  customs 
in  all  Western  Asia,  as  far  as  the  Mediterranean  Sea.  If 
this  view  be  correct,  the  Code  would  be  some  index  at  least 
of  the  character  of  the  law  which  the  Hebrews  encountered 
and  finally  overcame. 

Before  entering  on  the  subject,  it  may  be  well  to  reflect 
that  in  the  natural  course  of  events,  the  law  of  Hammurabi 
must  have  undergone  changes  both  in  Babylonia  and  in 
Assyria.  All  communities  must,  in  a  considerable  degree, 
make  their  laws  conform  to  the  necessities  of  national  life, 
and  there  is  no  ground  for  believing  that  these  great  states 
were,  in  this  respect,  exceptional.  The  fact  that  the  old 
code  was  for  two  thousand  years  treated  with  religious 
reverence  is  entirely  consistent  with  the  obsolescence  of 
some  of  its  provisions. 

In  discussing  this  ancient  code,  I  make  use  of  the 
excellent  work  of  Professor  Rogers,  Cuneiform  Parallels 
to  the  Old  Testament  (New  York,  19 12).  The  Code  of 
Hammurabi  is  there  estimated  to  have  contained  two 
hundred  and  fifty-two  sections,  of  which  thirty-five  (those 
between  Sees.  6^  and  100)  have  been  erased. 

We  find  but  eleven  sections  in  anywise  bearing  on 
homicide.     They  are  the  following  : 

Section  153.  If  a  man's  wife  cause  her  husband  to  be 
killed  for  the  sake  of  another  man,  they  shall  impale  that 
woman. 

Sec.  207.  (The  subject  of  this  section  is  introduced  by 
the  preceding  section,  which  is  given  here  for  the 
better  understanding  of  the  matter :  Sec.  206.  If  a 
man    have    struck  a   man    in   a  quarrel,  and  have 


12  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

wounded  him,  he  shall  swear,  '  I  did  not  strike  him 
intentionally',  and  he  shall  be  responsible  for  the 
doctor.) 

If  he  die  of  the  blows,  he  shall  swear,  and  if  he  be  of 
gentle  birth  he  shall  pay  one-half  of  a  mina  of  silver. 

Sec,  208.  If  he  be  the  son  of  a  freedman,  he  shall  pay 
one-third  of  a  mina  of  silver. 

Sec.  210.  (The  subject  of  this  section  is  introduced  by 
the  preceding  section,  209,  which  is  as  follows: 
Sec,  209.  If  a  man  have  struck  a  gentleman's  daughter 
and  have  caused  her  to  drop  what  was  in  her  womb, 
he  shall  pay  ten  shekels  of  silver  for  what  was  in  her 
womb.) 
If  that  woman  have  died,  they  shall  put  his  daughter 
to  death. 

Sec.  212.  (Sec.  211.  If  through  blows  he  have  caused 
the  daughter  of  a  freedman  to  drop  what  was  in 
her  womb,  he  shall  pay  five  shekels  of  silver.) 

If  that  woman  have  died,  he  shall  pay  one-half  a  mina 
of  silver. 

Sec,  214.  (Sec.  213.  If  he  have  struck  a  gentleman's 
maid-servant,  and  have  caused  her  to  drop  that 
which  was  in  her  womb,  he  shall  pay  two  shekels 
of  silver.) 

If  that  maid-servant  have  died,  he  shall  pay  one-third 
of  a  mina  of  silver. 

Sec.  229.  If  a  builder  have  built  a  house  for  a  man,  and 
have  not  made  it  strong,  and  the  house  built  have  fallen 
and  have  caused  the  death  of  the  owner  of  that  house,  that 
builder  shall  be  put  to  death. 

Sec.  230.  If  he  have  caused  the  death  of  a  son  of  the 
owner  of  the  house,  they  shall  put  to  death  a  son  of  that 
builder. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  13 

Sec,  231.  If  he  have  caused  the  death  of  a  slave  of  the 
owner  of  the  house,  he  shall  give  to  the  owner  of  the  house 
slave  for  slave. 

Sec.  251.  If  an  ox  given  to  goring  belong  to  a  man,  and 
have  shown  to  him  this  vice  that  he  is  given  to  goring,  but 
he  have  not  bound  up  his  horns,  and  have  not  shut  up  his 
ox,  and  that  ox  have  gored  a  man  of  gentle  birth  and  have 
killed  him,  he  shall  pay  one-half  of  a  mina  of  silver. 

Sec.  1^1.  If  he  be  a  gentleman's  slave  he  shall  pay 
one-third  of  a  mina  of  silver. 

There  is  here  no  hint  of  a  general  law  of  homicide.  If 
a  man,  having  a  grudge  against  another,  would  hide  himself 
and  lie  in  wait  for  his  coming,  and  then  would  fatally  stab 
him  in  the  back,  there  is  nothing  in  the  Hammurabi  Code 
entailing  any  punishment  for  the  act. 

This  means  not  that  such  atrocious  deeds  were  approved 
or  condoned,  but  that  the  state  had  not  yet  accepted  as 
part  of  its  function  the  protection  of  the  lives  of  its  citizens 
in  general.  Nor  does  it  mean  that  every  individual  man 
was  left  to  look  out  for  himself,  without  help  from  anybody. 
No  great  state  could  live  in  such  rank  disorder.  The 
reasonable  inference  is  that  minor  corporations,  such  as 
families,  guilds,  or  clans,  had  jurisdiction  over  homicide. 
Strangely  enough,  the  Code  itself  gives  no  information, 
direct  or  indirect,  upon  the  subject.  The  eleven  provisions 
cited  throw  no  light  upon  it. 

Section  153,  punishing  by  impalement  a  wife  who  causes 
her  husband  to  be  killed  for  the  sake  of  another  man,  is  not 
a  homicide  statute  in  the  proper  sense  of  the  word.  The 
wife  who  is  to  be  so  horribly  punished  has  not  herself 
committed  the  murder.     She  has  procured  another  to  do 


14  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

the  deed.  There  is  no  provision  in  the  Code  for  punishing 
the  actual  murderer.  It  is  thus  seen  that  the  crime  of  the 
wife  is  her  treason,  her  breach  of  marital  fidelity.  Indeed, 
it  would  seem  that  if  she  procured  the  death  of  her  husband 
for  any  cause  other  than  her  preference  for  another  man, 
the  statute  would  not  apply. 

Sections  207  and  208  refer  to  quarrels.  The  law  on 
this  subject  is,  generally,  that  if  a  man  is  wounded  in  a 
quarrel,  and  the  party  wounding  him  swears  that  he  did 
not  intend  to  inflict  a  wound,  he  suffers  no  other  penalty 
than  the  payment  of  the  doctor's  fees.  If,  however,  death 
ensues,  the  penalty  is  adjusted  according  to  the  social  status 
of  the  victim.  If  he  be  of  gentle  birth,  the  penalty  is  a  half 
silver  mina ;  if  a  freedman's  son,  a  third  of  a  silver  mina. 

In  this  case  the  homicide  is  viewed  as  accidental.  It  is 
not  looked  on  as  a  crime,  but  merely  as  a  trespass  for  which 
damages  must  be  paid  to  the  representatives  of  the  deceased. 
As  to  the  amount  thus  paid,  we  learn  from  Section  252 
that  the  conventional  value  of  a  slave  was  one-third  of  a 
silver  mina.  The  penalties  imposed  for  accidental  homicide 
were  looked  upon  as  mere  compensation  for  loss  sustained, 
and  included  no  punitive  element  whatever. 

Sections  210,  212,  and  214  refer  to  blows  inflicted  on 
a  gravid  woman.  The  sections  are  obscure,  and  no  light 
is  thrown  upon  the  peculiarity  of  a  man's  striking  a  woman 
in  that  condition.  If  we  fully  understood  the  technical  terms 
of  the  Code,  we  would  probably  conclude  that  the  cases  do 
not  refer  to  a  quarrel  between  the  man  and  woman,  but  to  an 
accidental  blow  received  by  the  woman  while  the  men  were 
quarrelling  with  each  other.  Be  that  as  it  may,  if  the 
consequence  of  the  blow  be  a  miscarriage  whereby  the  child 
is  lost,  the  amount  to  be  paid  is,  in  the  case  of  a  gentle- 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  15 

man's  daughter,  ten  shekels  of  silver,  and  in  the  case  of 
a  female  slave,  two  shekels  of  silver. 

If,  however,  the  death  of  the  woman  ensues,  the  punish- 
ment is  adjusted  according  to  the  social  status  of  the  victim. 
If  she  be  a  gentleman's  daughter,  the  daughter  of  the 
assailant  is  to  be  put  to  death ;  if  she  be  a  freedman's 
daughter,  the  assailant  pays  as  compensation  one-half  silver 
mina  ;  if  a  slave,  one-third  silver  mina. 

The  death  penalty  thus  imposed  in  one  case,  not  on 
the  perpetrator,  but  on  his  daughter,  indicates  that  there 
is  involved  no  notion  of  a  crime  against  the  state.  All  the 
other  penalties  are  paid  as  compensation  to  the  survivors 
of  the  deceased.  One  may  fairly  suppose  that  by  this 
ancient  law  the  father  of  the  deceased  woman  was  entitled 
to  kill  the  daughter  of  the  assailant,  and  that  this  was 
supposed  to  be  exact  compensation.  As  you  have  killed 
my  daughter,  we  will,  if  I  kill  your  daughter,  be  even. 

It  is  not  the  state  which  inflicts  the  death-penalty  on 
the  innocent  daughter,  whose  father,  even,  has  not  com- 
mitted a  crime.  If  he  had  struck  a  man  with  the  same 
result,  he  would  merely  have  paid  the  conventional  value 
of  the  deceased.  The  inference  is  easy  that  the  dead 
woman's  father  could  barter  his  right  to  kill  the  assailant's 
daughter  for  a  reasonable  kofer,  to  be  agreed  upon  between 
the  parties,  or  perhaps  to  be  adjusted  by  a  tribunal.  The 
effect  of  this  apparently  dreadful  law  would  then  be  that 
the  assailant  could  not  be  discharged  by  the  payment  of 
the  conventional  half  silver  mina,  but  would  have  to  pay 
punitive  damages  in  addition  thereto.  The  pervasiveness 
of  money  damages  in  the  Code  would  seem  to  warrant  the 
conclusion  that  in  the  course  of  time  the  literal  meaning 
of  the  Code  would  be  modified  in  this  direction. 


l6  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

Sections  2>2,g,  230,  and  231  refer  merely  to  one  class  of 
persons, — builders  whose  structures  fall  down  and  hurt 
somebody.  If  the  owner  is  killed,  the  builder  is  put  to 
death ;  if  the  owner's  son  is  killed,  the  builder's  son  is  put 
to  death ;  if  the  owner's  slave  is  killed,  he  shall  furnish 
another  slave  in  his  stead.  There  is  here  no  pretence  of 
a  crime.  The  builder  has  been  guilty  of  an  error  of  judge- 
ment, or,  at  worst,  of  some  degree  of  negligence.  He 
certainly  never  intended  to  kill  any  one. 

The  penalties  show  that  the  law  does  not  treat  the 
builder  as  a  criminal.  Otherwise  his  son  would  not,  in 
a  certain  eventuality,  be  put  to  death,  while  he  is  allowed 
to  go  unpunished. 

From  the  fact  that  builders  are  the  only  class  selected 
for  this  sort  of  legislation,  there  must  have  been  some 
peculiar  reason  which  is  not  at  present  ascertainable. 

For  the  rest,  we  may  be  reasonably  certain  that  in 
course  of  time  the  practice  oikofer  also  prevailed  in  this 
class  of  cases. 

Sections  251  and  252  cover  the  case  of  a  known  goring 
ox  allowed  by  his  master  to  roam  at  large  without  his 
horns  bound.  There  the  owner,  by  reason  of  his  negligence, 
must  pay  to  the  family  the  conventional  value  of  a  member 
thereof  who  has  been  killed  by  the  ox_, — a  half-mina  of 
silver  for  a  gentleman,  a  third  for  a  slave.  Punitive 
damages  there  are  none. 

In  none  of  these  cases  (except  perhaps  that  of  the 
faithless  wife)  is  there  any  evidence  that  the  state  looked 
upon  the  acts  punishable  by  death  as  crimes  against  the 
state,  or  indeed  as  anything  but  private  trespasses  against 
individuals.  Nowhere  is  there  any  consciousness  that  the 
intent  to  kill  is  a  proper  subject  of  inquiry,  or  that  the 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  1 7 

presence  or  absence  of  such  intent  is  of  any  moment. 
Nowhere  is  there  a  hint  of  any  public  duty  or  any  public 
officer  to  enforce  the  death  penalty. 

The  reasonable  conclusion  is  that  all  of  the  acts  above 
enumerated,  punishable  by  death  (except  perhaps  that  of 
the  faithless  wife),  were  looked  upon  as  mere  civil  trespasses  ; 
many  of  them,  by  the  very  terms  of  the  Code,  adjustable 
by  money  settlements,  and  the  rest,  in  the  course  of  time, 
falling  under  the  same  rule. 

In  their  origin  these  laws  were  doubtless  parts  of  a 
comprehensive  system  of  retaliatory  jurisprudence.  In 
order  to  realize  this  fully,  it  will  be  useful  to  give  certain 
additional  sections  of  that  Code,  closely  related  in  spirit 
to  those  already  cited. 

Section  ii6.  If  the  one  seized  die  in  the  house  of  him 
who  seized  him,  of  blows  or  of  want,  the  owner  of  the  one 
seized  shall  call  the  merchant  to  account,  and  if  it  be  the 
son  of  a  freedman  that  died,  they  shall  put  his  son  to 
death  .  .  . 

Sec.  19:^.  If  the  son  of  a  chamberlain  or  the  son  of 
a  vowed  woman  have  said  to  the  father  who  reared  him 
or  to  the  mother  who  reared  him,  *  Thou  art  not  my  father ', 
*  Thou  art  not  my  mother ',  they  shall  cut  out  his  tongue. 

Sec.  193.  If  the  son  of  a  chamberlain  or  the  son  of 
a  vowed  woman  have  known  his  father's  house,  and  have 
hated  the  father  that  reared  him  and  the  mother  that  reared 
him,  and  have  gone  back  to  his  father's  house,  they  shall 
pluck  out  his  eye. 

Sec.  194.  If  a  man  have  given  his  son  to  a  wet-nurse, 
and  that  son  have  died  in  the  hands  of  the  wet-nurse,  and 
the  wet-nurse,  without  consent  of  the  father  and  mother. 


18  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

have  substituted  another  child,  they  shall  call  her  to  account ; 
and  because,  without  the  consent  of  the  father  and  mother,  she 
has  substituted  another  child,  they  shall  cut  off  her  breasts. 

Sec.  195.  If  a  man  have  struck  his  father,  they  shall  cut 
off  his  hands. 

Sec.  196.  If  a  man  have  destroyed  the  eye  of  a  gentle- 
man, they  shall  destroy  his  eye. 

Sec.  197.  If  he  have  broken  a  gentleman's  bone,  they 
shall  break  his  bone. 

Sec.  200.  If  a  man  have  knocked  out  the  tooth  of  a 
man  of  his  own  rank,  they  shall  knock  out  his  tooth. 

Sec.  202.  If  a  man  have  struck  the  person  of  a  man  who 
is  his  superior,  he  shall  receive  sixty  strokes  with  an  oxtail 
whip  in  public. 

Sec.  205.  If  a  gentleman's  slave  have  struck  the  cheek 
of  a  freedman,  they  shall  cut  off  his  ear. 

Sec.  218.  If  a  doctor  have  operated  with  a  bronze  lancet 
on  a  gentleman  for  a  severe  wound,  and  have  caused  the 
gentleman's  death,  or  have  removed  a  cataract  with  a  bronze 
lancet,  and  have  destroyed  the  gentleman's  eye,  they  shall 
cut  off  his  hand. 

Sec.  226.  If  a  brander,  without  the  consent  of  the  owner 
of  a  slave,  have  made  a  slave's  mark  unrecognizable,  they 
shall  cut  off  the  hands  of  that  brander. 

Sec,  253.  If  a  man  have  hired  a  man  to  oversee  his  field, 
and  have  furnished  him  with  seed-grain,  have  entrusted  him 
with  oxen,  and  have  contracted  with  him  to  cultivate  that 
field,  and  that  man  have  stolen  the  seed  or  the  provender 
and  it  be  found  in  his  hands,  they  shall  cut  off  his  hands. 

Sec.  282.  If  a  slave  have  said  to  his  master,  *  Thou  art 
not  my  master ',  they  shall  call  him  to  account  as  his  slave, 
and  his  master  shall  cut  off  his  ear. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  19 

The  perusal  of  these  provisions  arouses  a  feeling  of 
repulsion.  We  are  apt  to  forget  the  slow  steps  by  which 
mankind  has  been  educated.  It  need  not  be  doubted  that 
when  primitive  man,  before  organized  society,  suffered 
injury  at  the  hand  of  another,  he  sought  revenge  by 
inflicting  on  his  enemy  all  the  harm  he  could.  The  idea 
of  limiting  the  punishment  to  the  exact  measure  of  the 
offence  betokens  the  birth  of  moderation  and  of  justice. 
The  crude  notion  that  human  law  can  make  good  human 
wrong  is  pathetically  ineradicable.  The  lex  talionis  which 
shocks  us  is  built  on  this  insecure  foundation.  The  ex- 
perience of  mankind  shows  that  in  measuring  punishments 
the  feelings  or  desires  of  the  injured  party  must  be  brushed 
aside  as  irrelevant,  and  that  nothing  can  be  considered  but 
the  interests jif-society  as- ^wliole.  The  realization  of  this 
truth  has  always  destroyed  the  lex  talionis,  that  is,  has 
substituted  for  specific  retaliation,  in  which  there  is  present 
a  spice  of  personal  malice,  general  retaliation,  which  punishes 
the  culprit,  but  only  so  much  and  in  such  manner  as 
comports  with  the  welfare  of  society. 

When  we  reflect  on  these  things,  we  shall  be  the  more 
ready  to  do  justice  to  the  men  of  the  remote  past,  who  were 
more  like  us  than  we  are  always  ready  to  admit. 

The  retaliation  statutes  of  Hammurabi,  which  we  have 
quoted,  were  doubtless  produced  by  the  conditions  of  the 
time. 

The  readiness  to  mutilate  men  evinced  in  this  series  of 
laws,  indicates  a  callousness  that  may  give  a  clue  to  their 
origin.  In  the  military  camp,  where  power  dwells  in  a 
single  person,  and  instant  obedience  is  indispensable,  the 
spirit  of  such  laws  is  generated.  It  is  difficult  to  believe 
that  they  were  not,   as   time  went  on,   modified    to    suit 

C  1 


20  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

a  more  peaceful  environment.  Whether  this  was  or  was 
not  the  case,  the  fact  stands  out  clear  as  respects  homicide, 
that  under  the  Hammurabi  Code  the  state  had  not  yet 
conceived  it  as  a  crime  cognizable  by  it  alone,  in  which  no 
private  right  can  be  recognized,  and  in  which  every  private 
wrong  has  been  merged. 

There  is  one  other  feature  of  the  Hammurabi  Code 
which  is  to  be  noted,  namely,  the  distinction  between  a 
superior  class  of  'gentleman'  and  the  rest  of  the  people. 
The  distinction  is  presei-ved  all  through  the  law  of  homicide 
and  the  lex  talionis.  That  the  Palestinian  farmers  in  the 
twelfth  or  thirteenth  century  B.  C.  had  this  sharp  distinction 
of  classes  is  very  doubtful.  The  great  probability  is  that 
the  gentleman's  law  did  not  seriously  affect  them,  and 
that  we  must  look  to  the  common  people's  law  if  we  would 
get  an  idea  of  the  Hammurabi  influence  in  Palestine. 

From  this  it  appears  that  though  the  loss  of  a  gentle- 
man's eye  was  punished  by  the  loss  of  the  aggressor's  eye, 
and  the  shattering  of  a  gentleman's  limb  was  punished  by 
the  shattering  of  the  aggressor's  limb,  yet  if  these  trespasses 
were  committed  against  a  poor  man,  the  aggressor  paid  him 
one  mina  of  silver  (Sec.  198),  and  if  they  were  committed 
against  a  slave  the  penalty  was  half  the  price  of  the  slave, 
to  be  paid,  of  course,  to  the  master  (Sec.  199). 

The  deprivation  of  a  tooth  in  an  equal  involved  the  loss 
of  the  aggressor's  tooth,  but  a  poor  man's  tooth  was  atoned 
for  by  one-third  of  a  mina  of  silver  (Sec.  201).  The  death 
by  blows  of  a  gentleman's  gravid  daughter  entailed  the 
death  of  the  assailant's  daughter,  but  if  it  was  a  poor 
man's  daughter  who  died,  half  a  mina  of  silver  paid  for  her 
(Sec.  a  I  a),  and  if  she  was  a  slave,  one-third  of  a  mina  of 
silver  was  enough  (Sec.  ^14). 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  21 

Even  the  doctor  who  lost  his  hand  when  his  gentleman 
patient  lost  his  eye,  paid  only  half  the  price  of  the  slave 
if  the  latter  had  suffered  the  same  misfortune,  the  payment, 
of  course,  being  made  not  to  the  victim,  but  to  his  master 
(Sec.  2ao). 

The  inference  seems  reasonable  that,  if  the  Hammurabi 
law  exerted  considerable  influence  in  Palestine,  its  probable 
effect  was  to  establish  a  general  custom  of  money  settle- 
ments for  all  kinds  of  trespasses,  from  a  blow  to  wilful 
murder. 

As  regards  the  HebrewMw  of  homicide,  you  are  all 
familiar  with  that  one  of  the  Ten  Commandments  which 
in  two  words  forbids  murder,  lo  tirsah  (Exod.  3o.  13 ; 
Deut.  5.  17).  While  it,  like  the  other  commandments,  is 
a  pregnant  memorandum  of  human  duty,  it  can  scarcely 
be  called  a  law,  in  the  ordinary  sense,  since  it  denounces 
no  punishment  for  infraction.  In  all  human  societies  it  has 
been  found  that  merely  telling  men  what  they  should  do, 
or  what  they  should  refrain  from  doing,  is  inadequate  to 
guard  society  against  the  hostile  acts  of  individuals 
dominated  by  anger,  greed,  lust  and  other  violent  passions. 
However  insistent  certain  theorists  are  on  trusting  to  the 
spiritual  strength  of  every  individual  to  assure  his  right 
conduct,  practical  statesmen  and  legists  have  always  deemed 
it  necessary  to  make  the  element  called  '  sanction '  a  neces- 
sary feature  of  law.  '  Sanction  *  means  that  part  of  the  law 
which  fixes  a  punishment  for  its  infraction. 

It  is  with  the  Pentateuchal  laws  of  homicide,  which 
include  this  indispensable  element,  that  we  deal. 

The  first  group  of  them  is  found  in  Exodus,  chapters  ai 
and  IQ, ;  the  second  group  in  Leviticus,  chapter  24 ;  the  third 
group  in  Numbers,  chapter  0^^  ;  the  fourth  in  Deuteronomy, 


22  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

chapters  4,  19,  and  iZ/,  and  then  there  is  a  supplemental 
group  in  the  Book  of  Joshua,  chapter  i^o. 

We  sliall  now  give  these  texts  in  fulJ,  in  the  following 
order :  first,  the  Exodus  texts ;  second,  the  Deuteronomy- 
texts  ;  third,  the  Numbers  texts  ;  fourth,  the  Joshua  texts ; 
and  fifth,  the  Leviticus  texts.  In  choosing  this  order  of 
presentation,  it  is  necessary  to  remark  that  our  purpose 
is  not  to  ascertain  the  dates  of  texts,  but  the  probable 
course  of  development  of  institutions.  It  may  be  that 
there  are  elements  of  various  ages  in  the  same  text,  so 
that  one  treated  lower  down  may  contain  material  as  old 
or  older  than  one  earlier  considered.  The  vast  work  done 
by  experts  in  the  literary  field  will  enable  any  one  who 
is  interested  in  that  phase  of  the  subject  to  find  ample 
guidance  and  instruction. 

The  Exodus  Texts 
Exod.  21.  12-14.  He  that  smiteth  a  man  {makkeh-ish)  so 
that  he  die,  shall  be  put  to  death.  But  if  a  man  lie 
not  in  wait  {lo  sadah),  but  God  deliver  him  into  his 
hand  {Jia-Elohim  mnah  le-yado),  then  I  will  appoint 
thee  a  makoni  whither  he  shall  flee.  If,  however, 
a  man  come  presumptuously  {yazid)  upon  his  neigh- 
bour to  slay  him  with  guile  {be-onnah),  thou  shalt 
take  him  from  mine  altar  for  death. 

21.  20.  If  a  man  smite  his  male  or  female  slave  i^abdo  o 
amato)  with  a  rod  (sJiebet)  that  he  die  under  his  hand, 
nakom  yinnakeni  (he  must  be  punished). 

21.  21.  But  if  he  continue  a  day  or  two,  lo  ytikkam  (he 
need  not  be) ;  it  is  his  money  (kesef). 

21.  22.  If  men  strive  and  hurt  a  woman  with  child  so 
that  her  fruit  depart,  but  no  ason  follow,  ^anosh  ye- 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  23 

'^miesh  (he  shall  pay  a  fine)  according  to  the  claim  of 

the  woman's  husband  so  far  as  it  may  be  approved 

by  the  judges  (zve-natan  bi-flilim). 
jzi.  123.    But  if  ason  follow,  then  thou  shalt  give  nefesh 

tahat  nefesh  (life  for  life). 
%\.  Q,^.    Eye  for  eye,  tooth  for  tooth,  hand  for  hand,  foot 

for  foot, 
31.  25.    Burning  for  burning,  wound  for  wound,  stripe  for 

stripe, 
ijr.  28.    If  an  ox  gore  a  man  or  a  woman  that  they  die  . . . 
'2,1.  2g.    And  the  ox  were  wont  to  push  with  his  horn  in 

time  past,  and  the  owner  was  told  of  it  and  has  not 

kept  him  in,  then  if  he  has  killed  a  man  or  a  woman, 

the  ox  shall  be  stoned  and  his  owner  also  shall  be 

put  to  death  [yumat), 
21.  30.    If,  however,  a  kofer  be  acceptable  (to  the  injured 

family),  he  may  pay  it  and  save  his  life. 

21.  31.    In  the  case  of  a  son  or  daughter  so  killed,  the  law     n^ 

{mishpat)  is  the  same. 
31.  32.    In  the  case  of  a  male  or  female  slave  so  killed, 
he  shall  pay  the  master  thirty  shekels  of  silver  and 
the  ox  shall  be  stoned. 

22.  I  (2) .    If  a  thief  be  found  breaking  in  and  be  smitten  so  1 

that  he  die,  for  him  there  is  no  damim  (blood-guilt). 
22.  2  (3).    Unless  the  sun  have  risen,  in  which  case  there 
is  damim  (blood-guilt)  for  him. 

The  Deuteronomy  Texts 
The  Deuteronomy  texts  are  as  follows : 
Deut.  4. 41.  Then  Moses  set  apart  three  cities  east  of  Jordan. 
4.  42.    That  the  roseah   might  flee   thither  who   should 
kill  his  neighbour  bi-bli-ddat  (unwittingly),  not  hating 


24  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

him  {lo  sone-lo)  before,  and  fleeing  to  one  of  these 
cities  may  live. 
4. 43.    Bezer  (in  the  wilderness)  in  the  plain  country  of 
the  Reubenites ; 
Ramoth  (in  Gilead)  of  the  Gadites,  and 
Golan  (in  Bashan)  of  the  Manassites. 
19.  ^.   Thou  shalt  set  apart  three  cities  in  the  midst  of 
the   land  which   JHVH    thy  Elohim    giveth    thee 
(Canaan,  the  land  west  of  Jordan). 
19.  3.    Thou  shalt  construct  a  road,  thou  shalt  divide  thy 
land  into  three  districts,  that  every  slayer  {roseak) 
may  flee  thither  (la-mis  shamah). 
19.  4.  This  is  the  law  of  the  slayer  {debar  ha-roseah)^  who 
shall  flee  thither  that  he  may  live : 

Whoso  killeth  his  neighbour  bi-bli-ddat  (unwit- 
tingly), not  hating  him  {lo  sone-lo)  before. 
19.  5.  As  a  man  goeth  with  his  neighbour  to  the  forest 
to  fell  trees,  and  his  hand  fetcheth  a  stroke  to  cut 
down  a  tree,  and  the  head  slippeth  from  the  helve 
and  hit  his  neighbour  that  he  die,  he  shall  flee  to 
one  of  these  cities  that  he  may  live. 
19.  6.    Lest  the  go'el  ha-dam  pursue  the  roseah  while  his 
heart  is  hot  and  overtake  him,  because  the  way  is 
long,  and  slay  him  {we-hikkahu  7tefesh),  though  it 
A^iA^     I    was    not   a  case    for    capital   punishment    {mishpat 
^^  ^    mawet) ;  he  not  hating  him  before. 

19.  7.  Wherefore  ...  set  apart  these  three  cities. 

19.  10.    Let  not  innocent  blood  (the  blood  of  the  naki^ 

dam  naki)  be  shed  in  thy  land  which  JHVH,  thy 

Elohim^  giveth    thee  for  an  inheritance,  and    thus 

blood-guilt  (damim)  come  upon  thee. 

1 9.  1 1 .    If  a  man  hate  his  neighbour  and  lie  in  wait  for 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  25 

him  [we-arab  16)  and  come    upon    him  {we-kam 
^alaiu)  and  kill  him,  and  then  fleeth  to  one  of  these 
cities. 
19.  12.  The  zikne-iro  shall  send  and  fetch  him  thence 
and  deliver  him  into  the  hands  of  the  gdel  ha-dam 
that  he  may  die. 
19.  13.  Pity  him  not,  but  put  away  dam  ha-iiaki  (blood- 
guilt  for  the  innocent)  from  Israel,  that  it  may  go 
well  with  thee. 
19.  15.    One  witness  (ed  ehad)  shall  not  be  heard  against 
any  man    for   any  ''azvon    (crime)    or    hattat    (mis- 
demeanour) with  which  he  may  be  charged.    By  the 
mouth  of  two  ^edim  or  of  three  ''edim  shall  the  matter 
(dabar)  be  established. 

The  Numbers  Texts 
The  Numbers  texts  are  as  follows : 
Numb,  ^i^,  II.  Ye  shall  appoint  you  cities  to  be  cities  of 

refuge  i^are  miklat)  for  you,  that  the  slayer  (roseah) 

may  flee  thither  who  killeth  any  person  unwittingly 

{bi-shgagaJi). 
2,$.  liJ.    And  they  shall  be  unto  you    cities    for   refuge 

{le-miklat)  from  the^^V/,  that  the  slayer  {roseah)  die 

not,  until  he  appear  before  the  *^Edah  for  judgement. 
'>,^,  13.    And  of  these  cities  which  ye  shall  give  there 

shall  be  six  ^are  miklat. 
'3,^,  14.  Ye  shall  give  three  cities  east  of  Jordan  and  three 

cities  in  the  land  of  Canaan,  which   shall  be  '^are 

miklat. 
'>^^,  15.  These  six  cities  shall  be  for  miklat  for  the  Bne- 

Israel  for  the  ger  and  for  the  toshab  among  them, 

that  any  makkeh-nefesh  bi-shgagah  may  flee  thither. 


26  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

35.  16.  If  he  smite  him  with  an  instrument  of  iron  that 

he  die,  he  is  a  roseah  ;  mot ynimat  ha-roseah. 
'^^.  1 7.  If  he  smite  him  with  a  stone,  wherewith  he  may 

die,  he  is  a  roseah  ;  mot  yiimat  ha-roseah, 
'^^.  18.  Or  if  he  smite  him  with  a  hand-weapon  of  wood 
wherewith  he  may  die,  he  is  a  roseah ;  mot  yiimat 
ha-roseah. 
0^^,  19.  T\\^gdelha-dam  shall  put  \}[\^  roseah  to  death; 
{be-fig'o  bo)  when  he  meets  him  he  shall  put  him  to 
death. 
2fS'  ^o.  Or  if  he  thrust  him  of  hatred  {be-sin'aJi)  or  hurl 

at  him  by  lying  in  wait  {bi-sdiyah)  and  he  die ; 
2,S'  21.  Or  if  in  enmity  {be-ebah)  he  smite  him  with  his 
hand  that  he  die,  the  smiter  (ha-makkeh)  shall  be 
put  to  death  [mot  yiimat) ;  he  is  a  roseah. 
'^f^.  %\\i.  The  go' el  ha-dam  shall  put  to  death  the  roseah 
when  he  meets  him  {be-fig^o  bo). 
^^.  2,2.  But  if  he  struck  him  suddenly  without  enmity 
(belo-ebah)  or  have  hurled  a  weapon  at  him  (be/o- 
sediyah)  without  lying  in  wait, 
2)h'  23*  Or  without  looking  {beli-reot)  let  fall  upon  him 
a  stone  wherewith  a  man  may  die  and  he  die,  not 
being  his  enemy  (oyeb),  nor  seeking  to  harm  him  : 
^^.  24.  The  ^£dah  shall  judge  {we-shafepi)  between  the 
makkeh  (slayer)  and  the  go  el  ha-dam^  in  accordance 
with  these  mishpatim. 
2i^.  25.  Th^^Edah  shall  deliver  the  roseah  from  the  hand 
of  the  go' el  ha-dam^  and  the  '^Edah  shall  deliver  him 
to  his  Hr  miklat  whither  he  had  fled,  and  there  he 
must  abide  until  the  death  of  the  kohen  ha-gadol 
(who  has  been  anointed  with  the  shemen  ha-hodesh 
(holy  oil)). 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  27 

^^.  26.  If  a  roseah  go  out  of  the  bounds  {gebiil)  of  his 
*2>  miklat^  whither  he  had  fled  ; 

'^^.  %"].  And  the  go  el  Jia-dam  come  upon  him  {masd) 
beyond  such  bounds,  the  go  el  ha-dam  may  put  the 
roseah  to  death  iive-rasah).  There  will  be  no  blood- 
guilt  for  him  (the  roseah)  {en  lo  dam).  Cp.  Exod. 
2^.  1,  2  (:Z,  3). 

^^,  1^.  For  he  should  have  remained  in  his  Hr  miklat  until 
the  death  of  the  kohen  ha-gadol.  Only  after  the  death 
of  the  kohen  ha-gadol  may  the  roseah  return  to  his 
ahtizzah-\^nd. 

35.  29.  So  these  shall  be  for  you  hukkat-mishpat  in  all 
your  moshabot.^ 

^^,  30.  A  makkeh  nefesh :  By  the  utterance  of  witnesses 
(lefi  ''edim)  shall  he  (the  go  el  ha-dam)  put  to  death 
{yirsak)  the  roseah.  One  witness  may  not  testify 
in  a  capital  case  [be-nefesh  la-mut). 

?>S'  31  •  Take  no  kufer  for  the  life  of  a  roseah,  who  has 
been  sentenced  {rashd)  to  death  {la-mut) ;  he  must 
be  put  to  death  {mot  yiimat). 

'>f^.  32.  Moreover,  take  no  kofer  from  one  that  hath  fled 
to  his  ^ir  miklat  to  permit  his  return  into  the  canton 
(ba-ares)  (from  the  federal  city)  before  the  death  of 
the  kohen, 

?t5'  ?)'^'  Ye  shall  not  pollute  the  land  wherein  ye  are :  for 
blood-guilt  {ha-dam)  pollutes  the  land,  and  the  land 
cannot  be  purified  of  the  blood  {lo-yekuppar  la-dam) 
shed  in  it,  save  by  the  blood  of  him  that  shed  it 
{shofek). 

2  For  moshabot,  comp.  Lev.  23.  21,  31  ;  Num.  15.  2  ;  and  especially 
Num.  31.  10 ;  Ezek.  6.  6,  where  the  several  cities  are  conceived  as  constituent 
parts  of  larger  districts  called  moshabot. 


28  the  ancient  hebrew  law  of  homicide 

The  Joshua  Texts 
Josh.  20.  2.    Speak  to  the  Bne-Israel,  thus :  Appoint  "^are 
ha-miklat  whereof  I  spoke  to  you  through  Moses. 
20.  3.    That  the  roseah  may  flee  thither  {makkeh-nefesh 
bi-shgagah  hi-bli  da  at)  ;  they  shall  be  for  you  miklat 
from  the  gdel  ha-dam. 
20.  4.  When  he  that  fleeth  to  one  of  these  cities  stands 
(amad)  at  the  gate  {petah  shdar  hair),  he  shall  state 
his  case  (debar aw)  to  the  zikne  ha-ir  of  that  city. 
They  shall  receive  him  into  the  city,  and  assign  him 
a  place  of  abode. 
20.  5.    If  the  gdel  ha-dam  pursues  him  (and  demands 
his  surrender),  they  shall  not  deliver  the  roseah  into 
his  hand,  for  he  smote  his  neighbour  unwittingly 
{bi-bli-ddat),  not  hating  him  before . 
20.  6.  He  shall  abide  in  that  city  until  he  stand  (^ad^omdd) 
before  the  ''Edah  for  judgement  ila-mishpat)  (and  if 
the  judgement  be  in  his  favour)  till  the  death  of  the 
kohen  ha-gadol  for  the  time  being.     Then  shall  the 
roseah  return  to  his  city  and  his  home  (to  the  city 
whence  he  had  fled). 
20.  7.    The  cities  appointed  {wayakdishu)  were  : 
Kedesh  in  Galilee,  in  Mount  Naphtali ; 
Shechem,  in  Mount  Ephraim  ;  and 
Kiryath  Arba  (which  is  Hebron)  in  Mount  Judah. 
20.  8.    And  east  of  Jordan  : 

Bezer   in   the  wilderness  upon  the   plain  of  the 

Reuben  tribe; 
Ramoth  in  Gilead,  of  the  Gad  tribe ;  and 
Golan  in  Bashan,  of  the  Manasseh  tribe. 
20.  9.    These  are  the  ''are  ha-muadah  for  all  the  Bne- 
Israel  and  for  the  ger  who  sojourns  among  them  to 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  29 

flee  thither — every  makkeh-nefesh  bi-shgagah — that 
he  die  not  by  the  hand  of  the  go  el  ha-dam  until  he 
stand  (ad'^omdo)  before  the  "^Edah, 

The  Leviticus  Texts 
Lev.  24. 17.  He  that  killeth  any  man  {kol-nefesh  adani)  must 
be  put  to  death  (mot  ytimat). 
%4,  %i.  ...  He  that  killeth  a  man  {makkeh  adani)  shall 
be  put  to  death  {yttinat). 

In  approaching  the  examination  of  these  important 
texts,  it  is  well  to  keep  in  mind  that  our  object  is  to 
ascertain  the  view  of  the  Hebrew  mind  upon  homicide  in 
general.  We  wish  to  learn,  first,  whether  it  was  viewed  as 
a  trespass  against  private  persons,  and  therefore  adjustable 
by  those  immediately  interested,  or  whether,  on  the  other 
hand,  it  was  viewed  as  a  crime  of  such  gravity  against  the 
state  that  the  private  wrong  incident  thereto  was  extin- 
guished by  being  merged  in  the  injury  inflicted  on  the 
state. 

We  ought,  secondly,  to  determine  what  tribunal  or 
tribunals  had  jurisdiction  of  the  matter,  and  the  manner 
of  their  procedure. 

Our  third  point  will  be  to  discover  what  we  may  re- 
specting the  execution  of  the  judgement,  and,  incidentally, 
to  learn  the  modes  of  punishment  that  were  practised. 

These  inquiries,  of  course,  relate  to  homicide  as  a  legal 
wrong,  and  not  to  excusable  or  justifiable  homicide. 

It  is  obvious  that  the  killing  of  a  public  enemy  in  war 
does  not  constitute  the  offence,  since  such  enemy,  so  far  from     j 
being  within  the  peace  or  protection  of  the  state,  is  under     | 
its  ban,  as  one  whom  it  is  useful  and  meritorious  to  destroy.         d 
Blood  so  shed  is  called  war-blood  {deme  milhamah)  (1  Kings 


/</ 


30  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

2.  5),  and  for  its  shedding  no  blood-guilt  {damhn)  arises 
either  against  the  individual  slayer  or  against  the  community. 

A  striking  example  of  this  doctrine,  which  persists  even 
to  our  own  day,  is  given  in  the  thirty-first  chapter  of 
Numbers.  War  having  been  declared  against  Midian,  the 
arch-enemy  of  Israel,  the  army  gained  a  great  victory. 
When  the  officers  reported  their  action,  Moses  was  wroth 
with  them,  because  they  had  spared  alive  some  that' he 
deemed  the  most  dangerous  of  Israel's  foes. 

Curiously  enough,  with  this  view  of  the  matter  there 
45[as  mingled  another  sentiment  at  variance  with  the  first. 
Though  it  was  the  army's  duty  to  slay  enemies  at  war  with 
the  state,  yet  even  this  high  purpose  did  not  relieve  the 

slayer  from  the  necessity  of  purifying  himself,  there  being 

implied  in  this  the  thought  that  homicide,  however  justifi- 
able or  meritorious,  is  never  quite  blameless. 

^  Do  ye  abide  without  the  camp  seven  days :  whosoeverA 
hath  killed  any  person,  and  whosoever  hath  touched  any  n 
slain,  purify  yourselves  (unsin  yourselves,  tithatteti^  from  \ 
het\  sin)  on  the  third  day  and  on  the  seventh  day,  and  also  Jt 
your  captives  '  (Num.  31.  19).  j^ 

The  peace  or  protection  of  the  state  was,  in  ancient 
Hebrew  law,  supposed  to  be  conferred,  not  only  by  the 
state  directly,  but  by  the  several  cantons  or  districts  as 
representing  the  sovereignty  of  the  state,  and  also  by  the 
king  himself  as  the  personal  incarnation  of  the  sovereignty. 

One  of  the  striking  episodes  of  Hebrew  history  illustrates 
this :  Abner  was  the  general-in-chief  of  King  Saul's  army, 
and  cousin  to  the  king.  After  Saul's  death  and  David's 
assumption  of  the  crown  of  Judah,  it  was  Abner  who  sought 
to  perpetuate  the  dynasty  of  Saul  by  crowning  Ishbosheth 
king  over  Israel.     Civil  war  followed,  Abner  leading  the 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  31 

forces  of  Saul,  and  Joab  the  army  of  David.  They  met  at 
Gibeon,  and  Abner  was  defeated  and  started  to  retreat. 
Asahel,  a  younger  brother  of  Joab,  started  in  pursuit, 
flaming  with  desire  to  meet  the  great  warrior  in  single 
combat.  The  latter  declined,  but  the  fiery  youth  would 
not  abandon  his  purpose,  whereupon  Abner  accepted  his 
challenge  and  slew  him  (2  Sam.  2.  ^-23). 

Subsequently,  Ishbosheth  quarrelled  with  Abner,  and 
the  latter,  out  of  revenge,  offered  to  David  his  sword, 
and  his  influence  to  make  the  King  of  Judah  King  of  all 
Israel.  His  negotiations  to  that  end  being  largely  successful, 
he,  at  David's  invitation,  visited  the  latter's  capital,  Hebron, 
to  close  the  matter.  David  received  him  with  great  honour, 
and  when  the  treaty  was  concluded,  dismissed  him,  and  he 
went  *in  peace'  {be-shalom)  (2  Sam.  3.  21,  22). 

When  Joab  returned  from  an  expedition  and  learned 
what  had  happened,  he  was  in  a  fury,  and  angrily  chid  his 
royal  master  for  what  he  deemed  a  piece  of  atrocious  folly. 
He  did  not  stop  there,  but  sent  lying  messengers  after 
Abner  to  lure  him  back  by  a  pretended  message  from 
King  David.  They  succeeded  too  well.  Joab  met  him 
at  the  gate  of  Hebron  in  pretended  amity  and  stabbed 
him  to  death  (2  Sam.  3.  23-7)  under  the  pretence  that  the 
hostilities  which  caused  Abner  to  slay  Joab's  brother 
Asahel  were  not  yet  ended. 

David's  indignation  was  boundless,  but  he  was  powerless 
to  break  with  the  great  chieftain.  When,  however,  his  death 
was  near  and  he  communicated  his  last  wishes  to  his  son 
Solomon,  he  charged  the  latter  not  to  let  Joab's  hoar 
head  go  down  to  Sheol  in  peace  {be-shalom),  because  he 
shed  war-blood  {deme-milhamali)  in  peace  {be-shalom) 
(i  Kings  2.  5). 


32  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

The  moral  of  this  is  plain.  Though  Judah  and  Israel 
had  not  formally  concluded  peace  at  the  time  of  Abner's 
death,  yet  the  latter  was  in  treaty  with  David,  had  visited 
Hebron  on  the  latter's  assurance,  in  short,  was  in  the  king's 
peace  and  under  his  protection,  and  so  being,  was  foully 
murdered  by  Joab. 

This  doctrine  of  the  king's  peace,  or  the  peace  of  the 
state,  as  a  protection  against  homicide,  is  of  the  first  im- 
portance, since  its  rise  marks  the  era  when  homicide,  from 
being  a  private  wrong,  has  become  the  concern  of  the 
state. 

An  interesting  old  text,  belonging  to  the  zikne  ha-ir 
law,  well  illustrates  that  the  doctrine  had  at  an  early  period 
penetrated  to  every  corner  of  the  state.  It  is  contained  in 
Deuteronomy  (21.  1-9). 

One  is  found  slain  in  the  field.  There  is  no  clue  to  the 
murderer.  The  peace  of  the  state  has  been  violated.  As 
the  cities  are  near  each  other,  accurate  measurements  must 
be  made  in  order  to  ascertain  the  distance  between  the 
place  of  the  crime  and  the  various  adjacent  cities.  Com- 
parison of  these  distances  establishes  which  is  the  nearest, 
and  upon  it  rests  the  immediate  responsibility.  In  the 
language  of  the  day,  the  blood-guilt  (darn)  is  upon  it,  and 
in  order  to  be  relieved  of  this  burden  (forgiven,  nikkaper), 
solemn  ceremonial  disavowal  is  necessary.  The  zekenim 
measure  (a  i .  2) ;  they  wash  their  hands  over  the  sacrificed 
heifer  (21.  6) ;  they  make  their  solemn  protestation  of 
innocence  and  ignorance :  'Our  hands  have  not  shed  this 
blood;  our  eyes  have  not  seen'  (21.  7).  And  although  in 
one  verse  (3)  the  shofetim  are  brought  in,  and  in  another  (5) 
the  kohanim  bne-Levi  appear,  they  seem  to  have  nothing 
to  do.     Indeed,  verse  5  is  a  commentarial  exposition  of 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  33 

a  reason  for  inserting  th.Q  kohanim  bite-Levi,  and  runs  thus  : 

*  For  them  JHVH  ih.y  Elokiin  hath  chosen  to  minister  unto 
him  and  to  bless  by  the  Skem  of  JHVH,  and.  by  their 
pronouncement  shall  every  controversy  {rib)  and  every 
assault  inega)  be  decided.' 

That  this  general  assumption  of  responsibility  for  a 
man's  life  was  assumed  by  the  state  itself,  is  clear  from 
such  passages  as  these : 

*That  dam  naki  be  not  shed  in  thy  land,  which  JHVH 
thy  Elohim  giveth  thee  for  an  inheritance,  and  so  blood-guilt 
{daniini)  be  upon  thee '  (Deut.  19.  10). 

'  Thou  shalt  put  away  dam  ha-naki  (the  blood-guilt  for 
the  innocent)  from  Israel '  (Deut.  19.  13). 

Perhaps  the  most  striking  passage  on  this  subject  is 
Genesis  9.  5  :  '  Your  life-blood  will  I  require  from  beast  and 
man,  from  every  man's  brother  {ish  ahiw)  will  I  require  the 
life  of  a  man.' 

The  doctrine  of  double  blood-guilt  is  here  clearly 
indicated.  There  is  first,  the  primary  blood-guilt  incurred 
by  the  perpetrator,  which  is  expressed  by  the  first  half: 

*  Your  life-blood  will  I  require  from  man  {mi-yad  ha-adain) ', 
i.  e.  from  the  slayer.  Then  follows  the  secondary  blood- 
guilt  of  the  whole  community,  whose  bounden  duty  it  was 
to  prevent,  or  at  least  to  punish,  the  crime:  *At  the  hand 
of  every  man's  brother  {ish  ahiw)  will  I  require  the  life 
of  man.' 

By  this  expression,  ish  ahiw,  is  meant  the  community 
as  a  whole.  Instances  of  its  use  in  this  sense  are  abundant, 
as  the  passages  here  indicated  will  show :  Exod.  10.  23 ; 
16. 15  ;  Lev.  25.  46  ;  Num.  [4.  4  ;  2  Kings  7.  6  ;  Jer.  13. 14  ; 
25.  26 ;  Ezek.  4.  17  ;  24.  23  ;  ZZ-  3°  \  47-  H ;  Hag.  2.  22 ; 
Zech.  7.  9, 10 ;  Mai.  2.  10;  Neh.  5.  7. 

S.  D 


34  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

The  killing  of  a  public  enemy  in  war  is,  however,  not 
the  only  form  of  justifiable  homicide.  A  person  condemned 
to  death  by  law  may,  by  virtue  of  such  condemnation,  be 
killed  by  the  person  or  persons  designated  by  law,  and 
as  such  killing  is  the  performance  of  a  public  duty,  no 
blame  attaches  therefor.  In  the  case  of  Achan,  who  was 
condemned  to  death  by  the  oracle,  the  execution  is  fully 
described.  Joshua  and  the  great  council  {Kol  Israel)  took 
the  condemned  to  the  place  of  execution.  Joshua  announced 
his  doom  in  JHVH's  name,  and  Kol  Israel  stoned  him  to 
death  (Josh.  7.  24,  25). 

In  the  case  of  the  blasphemer  of  the  Shein^  JHVH 
Himself  gave  directions  for  the  execution  by  the  'Edah, 
Moses  communicated  them  to  the  '^Edah  {bne-Isracl),  and 
they  stoned  the  convict  to  death  (Lev.  24.  14,  23). 

In  the  case  of  the  sabbath-breaker,  JHVH  Himself 
directed  that  Kol  ha-edah  should  stone  him  to  death,  and 
they  did  so  (Num.  i^.  '^^,  ofi). 

One  convicted  of  manslaughter  may,  if  he  break  the 
bounds  of  his  prison  city,  be  lawfully  executed.  Such 
execution  is  justifiable.  It  creates  no  blood-guilt  (en  lo  dam) 
(Num.  ^^,  27). 

Another  case  of  justifiable  homicide  is  when  a  man  | 
defends  himself  against  attack  which  endangers  his  life  or  / 
his  home.  If  a  man  kills  a  burglar  at  night  (before  sunrise)  / 
while  breaking  in,  such  killing  is  justifiable.  It  creates  no 
blood-guilt  (en  lo  damiin)  (Exod.  22.  i  (2)). 

We  may  at  this  point  pause  and,  before  going  further, 
sum  up  the  contents  of  this  introductory  lecture. 

The  Hebrews  in  Egypt  had  some  foim  of  internal 
government  and  communal  law.     The  latter  was   orally 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  35 

transmitted,  and  presumably  much  of  it  was  incorporated 
in  the  subsequent  written  law.  When  they  conquered 
Palestine,  they  could  not  at  once  enforce  this  law,  because 
the  zikne  ha-ir  of  the  various  cantons  had  to  reckon,  or 
thought  they  had  to  reckon,  with  the  indigenous  law  which 
was  familiar  to  the  large  mass  of  Canaanites  who  continued 
to  dwell  among  them.  The  federal  delegates  who  were 
sent  to  the  various  cantons  never  succeeded  in  procuring 
real  compliance  with  the  Hebrew  law  in  many  important 
matters.  Probably  during  the  reign  of  Solomon  began 
a  determined  effort  at  a  thorough  law  reform  which  should 
sweep  away  the  local  customs  and  establish  the  supremacy 
of  the  federal  law.  This  movement,  which  lasted  perhaps 
a  hundred  years,  ended  in  the  final  triumph  of  the  federal 
law,  though  the  disruption  of  the  monarchy  during  that 
period  retarded  the  full  success  of  the  movement  in  the 
Northern  Kingdom. 

It  is  the  history  of  this  struggle  for  law-reform  which 
we  shall  endeavour  to  unravel  from  the  texts. 


D  % 


II 


We  have  now  reached  the  point  when  it  is  our  business 
to  examine  minutely  the  texts  bearing  on  the  subject  of 
homicide.  One  of  them,  however,  the  Exodus  text,  has 
in  it  elements  of  complication.  All  the  other  texts  are 
simpler.  Deuteronomy  and  Numbers  treat  of  murder  and 
of  manslaughter,  Joshua  of  manslaughter  only,  Leviticus  of 
murder  only.  Exodus,  however,  which,  like  Deuteronomy 
and  Numbers,  treats  both  of  murder  and  manslaughter, 
deals  also  with  other  aspects  than  are  elsewhere  considered. 

We  are  brought  (21.  20-1)  face  to  face  with  the  ugly 
slavery  question,  and  learn  that  though  the  slave  is  no 
longer  a  mere  chattel,  he  has  not  yet  the  full  rights  of  a 
man,  and  the  general  law  does  not  cover  his  case. 

We  find  two  other  exceptions  to  be  touched  upon 
hereafter. 

Our  purpose  in  this  course  is  to  deal  with  the  general 
law  of  homicide  only.  There  may  be  an  opportunity  at 
some  future  time,  to  consider  such  important  subjects  as 
slavery  and  its  history,  as  indeed  there  are  many  other 
questions  in  Hebrew  law  and  polity  worthy  of  study.  For 
the  present  investigation,  the  portion  of  the  Exodus  texts 
which  immediately  concerns  us  is  composed  of  three  verses 
only  (Exod.  21.  12-14). 

They  begin  with  the  broad  propositioin  Jthat  a  man  who 


kills  another  shall  be  put  to  death  {makkeh  ish  wa-met^ 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  37 

mot  yumat),  which  is  followed  by  a  limitation  or  qualifi- 
cation of  its  generality,  and  this  again  by  an  emphatic 
statement  or  definition  of  the  original  proposition  as 
qualified.  The  effect  is  to  divide  homicide  into  two 
degrees :  the  first,  for  which  the  death  penalty  is  in- 
exorably imposed,  we  may,  for  convenience,  call  murder; 
and  the  second,  for  which  the  death  penalty  is  not  imposed, 
may  be  called  manslaughter. 

As  to  the  quality  of  the  offence,  there  is  no  trace  of 
the  idea  that  it  is  a  trespass  merely.  JHVH  directs  Moses 
to  announce  these  mishpatim  to  the  community,  the  Bne- 
Israel  (20.  22  ;  21.  i),  and  the  enforcement  of  the  law  is  to 
be  by  it :  I  will  appoint  for  thee  the  makom  for  the  man- 
slayer  ;  thoti  shalt  take  the  murderer  from  mine  altar  for 
death.  Private  interests  are  not  alluded  to.  Tribunals  are 
provided.  When  a  Hebrew  slave's  term  of  service  is  to 
become  perpetual,  the  master  brings  him  to  Elohini  (21.6); 
when  vindictive  damages  are  to  be  ascertained,  \.\\q  pelilim 
fix  the  amount  (21.  22);  a  slave  niaimed  by  his  master 
goes  free,  a  right  impossible  to  be  enjoyed  by  a  slave 
without  public  protection  ;  in  the  only  allowable  case  of 
kofer  the  sum  is  ascertained  by  a  tribunal  (21.  30) ;  a  bailee 
who  has  been  robbed  must  appear  before  Elohim  for  judge- 
ment (22.  8  (9)),  and  railing  at  Elohim  when  one's  case  has 
been  lost,  is  expressly  forbidden  (2!2.  27  (28)).  In  short, 
we  are  dealing  here  with  the  prosecution  by  the  common- 
wealth of  a  high  crime.  As  befits  so  serious  a  matter,  the 
definitions  are  painfully  minute. 

If  a  man  comes  presumptuously  (yazid)  upon  his 
neighbour  to  slay  him  craftily  [be-ormah),  he  is  makkeh-ish^ 
within  the  meaning  of  the  twelfth  verse,  and  must  be  put 
to  death  (21.  14).     If  he  have  not  lain  in  wait  {lo  sadah)^ 


38  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

but  Elohim  have  delivered  him  into  his  hand  (Jia-Elohim 
innah  leyadd)^  he  is  not  a  makkeh-ish  within  the  meaning  of 
the  twelfth  verse. 

The  physical  acts  are  the  same  in  both  cases,  the  evil 
effect  is  the  same  in  both  cases.  This  old  Hebrew  law,^ 
however,  treats  these  facts  as  irrelevant  in  the  determination 
of  the  perpetrator's  degree  of  guilt  and  punishment.  It 
looks  in  this  regard  solely  to  intent,  to  motive.  Only  the 
murderer  forfeits  his  life,  and  this  murderer  is  one  who  lies 
in  wait,  who  comes  presumptuously,  with  a  set  purpose. 
The  words  used  are  impressive.  Lying  in  wait  is  called 
sadah,  the  term  employed  to  describe  the  wily  tactics  of 
the  hunter  who  pursues  his  game  (Gen.  lo.  9 ;  25.  27,  28  ; 
27.  Q,,  ^^  7,  33',  Lev.  17.  13).  There  are  other  instances  of 
the  use  of  the  same  word  to  describe  a  man-hunt  (i  Sam. 
34.  1 1  ;  Lam.  4.  1 8). 

Coming  presumptuously  is  called  j'azid,  a  word  likewise 
used  in  other  passages  to  express  insolent  defiance  of  law  or 
right  (Deut.  17.  12,  13;  18.  20,  22;  Isa.  33.  n). 

Coming  with  a  set  purpose  is  expressed  by  the  word 
be-ormah.  meaning  prudence,  foresight  (Prov.  1.4;  8.  5, 12), 
or  in  a  baser  sense,  craftiness  (Joshua  9.  4). 

The  words  describing  the  act  of  the  man  who  is  not 
guilty  of  murder,  but  of  mere  manslaughter,  are  equally 
striking.  That  he  did  not  lie  in  wait  (lo  sadah)  is  naturally 
the  first  and  most  important  element  of  his  defence.  The 
verse,  however,  goes  further  and  says  Jia-Elohim  innah 
ley  ado  {Elohim  has  delivered  him  into  his  hand).  The 
expression  is  one  indicative  of  a  state  of  general  opinion 
which  does  not  hesitate  to  acknowledge,  in  a  very  real 
sense,  the  government  of  God  in  human  affairs.  Under 
such   circumstances  it  is  not  unnatural,  it  is  even  logical 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  39 

to  conclude,  that  when  tragedy  overtakes  a  man  with 
stunning  suddenness,  unforeseen,  unapprehended,  it  must 
be  by  the  act  of  God.  Whether  the  tragedy  results  from 
what  we  could  call  a  pure  accident,  or  from  the  sudden 
conflict  of  two  impetuous  and  high-strung  men,  who  never 
before  had  cause  of  quarrel,  would  make  small  difference 
in  such  a  view — the  man  of  that  day  saw  God's  hand 
equally  in  both  cases. 

This  phrase,  ha-Elohim  innah  leyado^  would  come"  to 
have  a-  technical  meaning  among  jurists,  but  would  be  so 
generally  understood  that  a  definition  of  it  would  not  be 
thought  of.  Though  we  have  no  direct  guidance  to  ascer- 
tain its  precise  meaning,  we  are  not  entirely  without  aid 
from  other  texts.  There  are  at  least  two  instances  in  which 
a  form  of  this  verb  anah  is  used  in  a  manner  that  throws 
light  on  our  passage. 

When  Samson  fell  in  love  with  a  Philistine  woman,  he 
took  the  first  step  in  a  course  of  living  which  finally  led 
to  his  destruction.  His  parents  sought  to  dissuade  him, 
but  the  Biblical  writer  makes  the  reflection  that  they  knew 
not  whereof  they  spoke,  since  it  was  JHVH's  design  to 
bring  Samson  into  hostile  collision  {to  anah)  with  the 
Philistines  who  were  then  lording  it   over   Israel  (Judges 

14.  4). 

And  that  the  idea  of  a  quarrel  is  associated  with  the 
word  is  plain  from  the  well-known  story  of  the  Syrian 
general  Naaman.  This  distinguished  man  was  afflicted 
with  leprosy  and  could  obtain  no  relief.  A  little  Israelite 
handmaiden  of  his  wife  told  her  mistress  that  Elisha,  the 
great  prophet  of  Samaria,  could  cure  him.  The  king  hearing 
of  this,  insisted  on  Naaman's  undertaking  a  journey  to 
Samaria,   at   the   same  time  giving  him  a  personal  letter 


40  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

to  the  king  of  Israel,  advising  the  latter  that  he  had  sent 
his  favourite  general  to  him  to  be  cured. 

The  relations  between  the  two  powers  were  such  that 
the  king  of  Israel,  when  he  read  the  letter,  construed  it 
to  be  a  mere  subterfuge.  In  his  consternation  he  rent  his 
clothes,  and  exclaimed :  Am  I  Elohhn^  to  kill  or  cure  ? 
He  surely  seeks  to  quarrel  with  me  {mii'aimeh  hu  li). 
Elisha,  however,  soon  corrected  the  error  by  telling  the 
king  that  Naaman^s  cure  was  not  to  be  by  the  king,  but 
by  the  prophet  (2  Kings  5.  1-8). 

In  both  these  cases  there  h  a  subtle  intimation  that 
Divine  wisdom  at  times  foments  a  quarrel  between  persons 
not  hostile  to  each  other,  in  order  to  attain  ends  of  justice 
which  the  narrow  wisdom  of  human  courts  would  be  unable 
to  reach. 

To  minds  that  hold  these  views,  accidents  are,  of  course, 
impossible.  Everything  is  ordered  by  \.ht  Elohhn,  and 
manJs_.responsible  only  for  what  he  deliberately  intends. 
Hence  the  term  ha-Elohim  innah  leyado  comprised  a  toler- 
ably large  range  of  happenings,  from  the  death  of  a  man  by 
the  mere  slipping  of  his  neighbour's  axe  from  the  helve, 
to  the  killing  in  hot  blood. 

The  law  of  Exod.  21.  \i-\^  does  not,  however,  stop 
with  the  mere  definition  of  homicide.  It  points  out  what 
happened  after  a  homicide  had  been  committed.  Whether 
it  was  murder  or  manslaughter,  the  perpetrator  sought 
sanctuary  ;  that  is,  he  went  to  the  altar  and  took  hold 
of  its  horns. 

The  words  are  in  the  case  of  manslaughter:  I  will 
appoint  thee  a  ;;2^^^;;/,  whither  he  shall  flee  (or  go)  (21. 13); 
and  in  the  case  of  murder :  Thou  shalt  take  him  from  mine 
altar  [mizbeak)  for  death  (21.  14). 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  41 

That  makoni  and  mizbeah  refer  to  the  same  place  there 
can  be  little  doubt. 

Before  the  conquest  the  country  was  divided  into  many 
little  kingdoms,  called  ^arim  (cities),  each  of  which  had 
a  capital  city,  which  was  the  seat  of  cantonal  government. 
At  its  gate  sat  the  tribunals ;  in  the  portion  devoted  to  the 
priests  were  the  paraphernalia  of  worship.  In  our  lectures 
on  Hebrew  Polity  we  have  pointed  out  the  example  of 
Ophrah  in  the  early  days  of  Hebrew  domination  when  the 
zikne  ha-ir  practised  Canaanite  rites  and  administered  the 
law  with,  at  least,  a  Canaanite  infusion.  The  makom  was 
the  ecclesiastical  section  of  the  capital,  and  perhaps  no 
better  description  of  it  can  be  given  than  that  of  Deut.  12, 
where  the  imperative  command  is  given  to  destroy  every 
one  of  them. 

Ye  shall  utterly  destroy  all  the  mekomot^  wherein  the 
nations  which  ye  shall  possess  served  their  Elohim,  upon 
the  high  mountains  and  upon  the  hills,  and  under  every 
green  tree.  And  ye  shall  overthrow  their  altars  {mizbehot)^ 
and  break  their  massebot,  and  burn  their  asherhn^  and  hew 
down  iho.  pesilim  of  their  Elohim^  and  destroy  their  names 
out  of  that  makom  (Deut.  \%.  2,  3). 

The  elaborate  furnishing  of  such  a  makom  indicates  that 
though  there  may  have  been  humble  shrines,  popularly 
called  makoiUy  scattered  through  the  country,  yet  the 
generally  accepted  makom  was  an  important  place  in  each 
canton,  the  capital  city.  Thus  we  read  of  mekom  Schechem 
(Gen.  12.  6),  of  Bethel,  the  makom  where  his  (xA^bram's)  tent 
had  been  (Gen.  13.  3)  ;  the  makom  of  the  mizbeah  (Gen. 
13.  4),  and  again  of  Jacob's  calling  the  name  of  the  makom 
at  Luz,  Bethel  (Gen.  28.  11-19). 

Perhaps  the  best  evidence  is  the  fact  that  the  Jerusalem 


42  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

temple,  in  all  its  glory,  is  spoken  of  by  Solomon  as  the 
makoni  (i  Kings  8.  29,  30,  '^^, 

That  in  the  days  of  the  zikne  ha-ir  the  law  of  every 
canton  was  administered  in  its  own  capital  city  cannot 
be  doubted.  A  person  charged  with  homicide  would  be 
tried  there.  If,  however,  there  was  good  reason  to  avoid 
trial,  he  could  run  to  sanctuary,  and  it  may  be  that  he  was 
not  limited  in  that  respect,  but  could  be  protected  if  he 
seized  hold  of  the  altar  in  the  makom  of  any  of  the  ''arim 
in  the  land. 

This  sanctuary  granted  protection  even  to  the  convicted 
criminal. 

That  the  Hebrew  law  of  homicide,  as  laid  down  in 
Exodus,  was  based  on  ancient  Hebrew  common  law  is 
probable.  At  all  events,  it  represented  the  thought  that 
^ilful  murder  generates  blood-guilt,  not  alone  in  the  per- 
petrator, but  in  the  whole  community.  Translated  into 
modern  phrase,  this  means  that  murder  is  a  high  crime 
against  the  state,  and  that  all  elements  of  private  trespass 
and  consequent  damages,  which  would  otherwise  inhere 
in  it,  are  submerged  and  annulled. 

We  have  heretofore  enlarged  upon  the  formation  of  the 
Hebrew  state  out  of  the  pre-Hebraic  cantons  (W/w),  and 
have  shown  that  the  town-councillors  {zikne  Jia-ir)  in- 
sensibly fell  into  many  of  the  ways  of  Canaanite  religion 
and  law.  The  formative  period  of  the  state  began  to  show 
a  decided  progress  towards  national  unity  as  early  as  the 
time  of  Samuel,  but  his  administration  and  that  of  Saul 
were  too  disturbed  to  complete  the  establishment  of  a 
settled  commonwealth.  It  was  the  genius  of  David  which 
completed  the  work.  His  life,  however,  was  largely  taken 
up  in  securing  his  country  against   enemies  from  without 


THE    ANCIENT   HEBREW    LAW    OF    HOMICIDE  43 

and  from  within.  Much  remained  to  be  done.  David  was, 
above  all,  a  warrior,  and  though  he  had  magnificent  plans 
for  welding  the  state  into  a  peaceful  and  harmonious  whole, 
their  fruition  was  not  immediate.  That  he  had  conceived 
a  mode  of  establishing  the  supremacy  of  federal  law,  and 
that  it  lacked  efficiency,  appears  from  an  account  in 
the  second  book  of  Samuel. 

His  son  Absalom  was  ambitious  to  succeed  to  the  throne. 
He  was  renowned  for  the  beauty  of  his  person  (2  Sam. 
14.  25) ;  he  made  himself  conspicuous  by  the  mode  of 
wearing  his  hair  (2  Sam.  14.  26) ;  he  affected  a  state  beyond 
the  usual  custom  of  royal  princes  (2  Sam.  15.  i).  Above 
all,  he  was  master  of  the  arts  of  the  demagogue.  An 
incidental  remark  in  the  narrative  telling  of  this  quality, 
throws  light  on  our  subject.  Absalom  rose  up  early  and 
stood  beside  the  way  of  the  gate  ;  and  it  was  so,  that  when 
any  man  that  had  a  controversy  {rib)  came  to  the  king 
for  judgement  {la-mishpaf)^  Absalom  hailed  him  :  From 
which  *2>  art  thou  ?  And  the  answer  came  :  Thy  servant 
is  from  such  and  such  a  place.  Then  Absalom  would  say : 
No  doubt  your  case  is  good  and  just,  but  then  the  king  has 
appointed  no  one  to  hear  you.  O  that  he  would  appoint 
me  Shofet  ba-ares,  so  that  any  man  that  has  a  rib  or 
mishpat  might  come  to  me.  I  would  right  him.  All  these 
men  made  obeisance  to  him,  and  he  received  them  with 
warm  marks  of  affection.  So  acted  Absalom  with  all  Israel 
that  came  to  the  king  for  mishpat,  and,  the  historian  adds, 
so  stole  Absalom  the  hearts  of  anshe  Israel,  the  leading 
men  of  the  nation. 

The  narrative  proves  that  the  administration  of  law  in 
the  several  cantons  had  aroused  discontent,  and  that  a 
movement  in  favour  of  larger  federal  supervision  was  making 


44  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

progress,  or  so  supple  a  politician  would  not  have  become 
its  chief  advocate.  And  there  are  circumstances  happening 
not  much  later  which  strongly  confirm  this  view.  David 
died  about  970  B.C.  One  of  the  first  acts  of  Solomon's 
reign  was  to  institute  a  great  fete  at  Gibeon.  On  that 
night  he  dreamed  that  he  prayed  JHVH  to  give  him  a  Icb 
shomea\  a  mind  to  hear  and  to  judge  [lishpot)  the  people, 
to  discern  between  the  right  and  the  wrong  (i  Kings  3.  9), 
and  that  JHVH  granted  his  prayer  to  the  full  'so 
that  there  was  none  like  thee  before  nor  will  be  here- 
after' (3.  12). 

And  by  way  of  illustration,  there  follows  the  story  of 
the  two  women  and  Solomon's  wise  judgement  on  their 
dispute,  and  all  Israel  believed  that  the  wisdom  of  God 
was  in  him  to  administer  justice  (la-asot  mishpat)  (3.  28). 

That  he  proceeded  at  once  to  reorganize  the  govern- 
ment, so  as  to  bring  the  central  power  to  bear  on  each 
corner  of  the  state,  appears  from  i  Kings  4.  And  as  a 
result  we  are  told  that  Judah  and  Israel  dwelt  safely,  every 
man  under  his  vine  and  under  his  fig-tree,  from  Dan  even 
to  Beersheba  (1  Kings  5.  5  (4.  25)). 

In  the  pursuit  of  his  great  federal  policy,  he  planned  to 
make  Jerusalem  a  point  of  attraction  for  every  inhabitant 
of  the  country,  and  for  strangers  from  abroad.  Especially 
prominent  was  the  group  of  great  buildings  of  which  the 
Temple  was  the  most  striking  and  impressive.  One 
notable  feature  of  his  palace  was  the  tdain  ha-mishpat, 
a  porch  for  the  throne  where  he  sat  as  the  chief  judge  of 
the  kingdom  (i  Kings  7.  7).  Into  the  Temple  was  intro- 
duced the  sacrosanct  Shem,  the  Ark  of  the  Covenant,  the 
visible  symbol  of  Divine  Justice  on  earth  (i  Kings  8.  21). 

And  Solomon,  by  his  prayer,  indicated  that  thereafter 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  45 

its  high  function  of  administering  justice  by  oracle  would 
cease,  and  that  ordinary  courts  would  take  its  place,  the 
judges  whereof  would  impose  an  oath  [alak)  upon  a  man 
charged  with  injuring  his  neighbour,  invoking  God  so  to 
order  that  the  guilty  might  be  convicted  (le-harshid  rashd) 
and  receive  his  deserts,  and  the  innocent  be  acquitted 
(le-hasdik  saddik)  as  is  meet  (i  Kings  8.  32). 

These  facts  show  the  circumstances  which  led  to 
Solomon's  being  heralded  in  legend  as  the  great  juridical 
genius  of  Israel.  There  is  in  his  very  name  a  hint  that  he 
was  determined  to  put  an  end,  once  for  all,  not  only  to 
external  wars,  but  to  domestic  disorders  and  feuds.  Though 
the  boy  was  named  Jedidiah,  probably  to  conciliate  the 
turbulent  Benjamite  element  in  the  state,  by  the  adoption 
of  the  cognomen  of  their  eponymous  ancestor  (Deut.  2)'^'  12), 
yet  his  father,  seasoned  old  warrior  that  he  was,  had  come 
to  see  that  peace  was  the  highest  ideal  of  a  prosperous 
state.  And  so,  as  his  end  drew  near,  he  charged  the  prince 
to  build  the  Temple,  which  privilege,  though  eagerly  sought, 
had  been  denied  him,  because  he  had  delighted  in  bloodshed 
and  grown  great  on  it,  and  it  had  been  reserved  for  a  man 
who  would  give  the  country  repose  {ish  menuhah)^  in  whose 
reign  Israel  should  have  peace  {shalom)  and  quiet  (sheket) 
(i  Chron.  22.  6-9). 

Solomon  {Shelomd)  was  an  appropriate  cognomen  for 
such  a  man,  and  it  was  David  who  bestowed  it  on  him 
(2  Sam.  12.  24;  I  Chron.  22.  9). 

It  is  probable  that  the  first  effort  of  the  federal  govern- 
ment was  to  correct  the  cantonal  government's  indifference 
to  the  offence  of  sarah^  which  was  the  active  and  open 
advocacy  of  Baal  as  against  JHVH.  In  Ancient  Hebreiv 
Polity  (pp.  51-61)  I  have  shown  the  transfer  of  jurisdiction 


46  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

over  this  offence  from  the  zik?ie  ha-ir  to  the  Federal  High 
Court,  there  called  the  ''Am  ha-ares.  This  was  a  measure 
to  protect  the  state  against  direct  assault  on  the  established 
religion  which  was  its  foundation. 

Security  of  life  everywhere  within  the  kingdom  was  a 
matter  of  no  less  importance.  To  appreciate  the  gravity  of 
the  question  thus  presented,  we  must  try  to  understand  the 
pre-Hebraic  Canaanite  law  of  homicide. 

The  common  notion  that  it  was  in  the  pure  blood-feud 
or  vendetta  stage  is  unsupported  by  adequate  evidence.  In 
■-.placing  before  you  the  sources  of  our  information  in  the 
first  lecture,  you  will  remember  that  eleven  provisions  of 
^le  law  of  Hammurabi  [circa  2250  B.  C.)  were  presented, 
being  the  only  articles  of  that  Code  in  any  wise  bearing 
on  the  subject  of  homicide.  They  show  that  at  the  time 
of  the  promulgation  of  that  Code,  the  Babylonian  state  had 
not  yet  assumed  jurisdiction  over  homicide.  The  inference 
is  that  the  law  of  blood-feud  or  vendetta,  in  some  form, 
was  then  in  force.  Blood-feud  or  vendetta  is  a  form  of 
true  law.  Before  a  state  is  fully  organized,  certain  functions 
which  ought  to  be  exercised  by  it  are  left  to  the  control 
of  subordinate  organizations  within  it,  such  as  families, 
clans,  or  guilds.      Homicide    is  one  of  the  subjects  with 


which  early  governments  are  not  eager  to  deal. 

During  such  preparatory  stages  ot"  a  state's  growth,  the  \ 
vendetta  is  the  only  safeguard  of  human  life.  It  protects  I 
society.  Far  from  being  an  enemy  of  the  nascent  state,  I 
it  is  an  effective  aid  to  its  development.  So  soon,  however,  j 
as  the  proper  stage  has  been  reached,  the  vendetta  law  is 
at  first  modified,  and  afterwards,  when  the  state  has  assumed  / 
the  whole  jurisdiction  over  cases  of  homicide,  it  is  totally  7 
repealed  and  destroyed.     Sporadic  survivals  here  and  there 


f- 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  47 

are  in  the  nature  of  conscious  crime,  and  in  no  wise  impair 
the  force  of  these  general  rules. 

The  result  as  here  sketched  is  inevitable.  State  laws 
against  homicide  raise  questions  of  fact  and  law  which 
cannot  be  determined  otherwise  than  by  regularly  con- 
stituted tribunals. 

Vendetta  law,  on  the  other  hand,  is  plain  and  simple, 
and  needs  to  make  no  curious  inquiry  into  circumstances  or 
motives.  A  member  of  clan  A  has  killed  a  member  of 
clan  B.  The  latter  must  retaliate  in  kind ;  for,  if  there 
were  no  such  redress,  the  injured  clan  would  become  the 
mark  for  hostile  assault  from  all  quarters. 

That  state  laws  which  punish  a  man  for  his  own  crime 
only,  cannot  co-exist  with  a  system  which  punishes  without 
regard  to  the  question  whether  the  victim  is  innocent  or 
guilty,  is  too  obvious  for  argument. 

The  reticence  of  the  Hammurabi  Code  on  the  subject 
of  homicide  does  not  forbid  the  conclusion  that  the  vendetta 
law,  pure  and  simple,  was  no  longer  dominant ;  that  though 
tolerated  to  a  degree,  it  had  undergone  modification. 

It  needs  but  little  reflection  to  understand  that  the 
vendetta  law  is,  in  effect,  a  perpetual  civil  war  between 
constituent  elements  of  a  state,  and  that  its  unbridled  prac- 
tice can  have  no  other  result  than  the  destruction  of  the  state. 

The    Hammurabi    Code    presents    indications    that    it 
realized  this  truth,  and  though  it  did  not  deal  with  homicide 
directly,  it  ordered  the  several  corporate  elements  of  the 
state  to  accept  wergild  or  money  satisfaction  for  certain^ 
kinds  of  homicide. 

One  who  killed  another  in  a  quarrel  paid  to  the  bereaved 
family  or  clan  or  guild  a  certain  value  in  silver,  and  there 
the  matter  ended. 


^ 


J/ 


48  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

That  in  course  of  time  this  principle  of  wergild  also 
extended  to  cases  of  wilful  murder  is  probable.  It  is  not 
to  be  believed  that  great  states  like  Babylonia  and  Assyria 
failed  to  change  their  laws  from  time  to  time.  Reverence 
paid  to  ancient  codes  does  not  mean  that  they  retain  their 
pristine  usefulness,  or  that  no  part  of  them  has  become 
obsolete. 

We  may  well  believe  that  when  the  Hebrews  entered 
Canaan,  a  thousand  years  after  the  promulgation  of  the 
Hammurabi  Code,  the  latter  had  been  essentially  changed, 
and  that  the  vendetta  law  for  murder  had  been  materially 
modified.  Be  that  as  it  may,  there  is  no  evidence  that 
unmodified  vendetta  law  then  ruled  in  Canaan.  Every- 
where there  were  ordered  little  kingdoms  whose  existence 
would  have  been  daily  imperilled  from  within  had  such 
licence  been  tolerated. 


The  evidence  of  the  Hebrew  legislation  on  the  subject 
confirms  the  view  that  the  Canaanite  law  of  homicide  was 
vendetta  law  as  modified  hy  svergild  (kofer)-  While  the 
kings  of  the  various  '^arim  did  not  make  homicide  an  affair 
of  the  state,  they  nevertheless  preserved  the  peace  of  the  */> 
by  permitting  the  tribunals  to  assess  the  proper  amount 
of  kofer. 

This  was  the  state  of  the  law  when  the  Hebrews  entered 
Canaan,  and  the  whole  evidence  tends  to  show  that  the 
zikne  ha-'^ir  of  the  various  cantons  failed  to  administer  the 
Hebrew  law  whose  letter  and  spirit  were  hostile  to  the  native 
practice  of  kofer. 

There  are  hints  in  the  Biblical  writings  which  seem  to 
attest  the  existence  of  the  practice  of  kofer,  and  to  indicate 
that  the  makoni  priests  were  the  intermediaries  who  arranged 
terms  between  the  parties. 


V 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  49 

It  will  be  remembered  that  Eli's  sons  and  Samuel's 
sons  were,  in  the  popular  mind,  guilty  of  abusing  their 
high  positions  for  their  own  material  advantage.  After  the 
coronation  of  Saul,  Samuel,  smarting  under  the  national 
repudiation  implied  by  the  establishment  of  the  monarchy, 
delivered  a  farewell  address,  in  which,  with  conscious 
integrity,  he  challenged  any  man  to  point  to  any  question- 
able transaction  in  his  long  public  career.  One  of  the  acts 
he  repudiates  is  the  taking  of  kofer  that  blinds  the  eyes 
(i  Sam.  12.  1-5). 

The  Authorized  Version  renders  it  bribe,  evidently  under 
prepossession  of  the  idea  that  Samuel  was  a  shofet  in  the 
later  sense,  a  judge  of  a  law-court,  and  without  reflecting 
that  Samuel  was  the  Kohens  acolyte ;  that  as  a  child 
he  ministered  before  JHVH,  girded  with  a  linen  ephod 
(i  Sam.  2.  18  ;  3.  1) ;  that  he  was  to  be  a  Kohen  neeman 
to  replace  Eli's  sons  (2.  o^^,  and  that  all  Israel  recognized 
him  as  nee^nan,  as  a  iiabi  of  JHVH  (3.  20). 

That  the  sons  of  Eli,  among  other  things,  were  charged 
with  profiting  by  kofer,  may  be  fairly  assumed,  and  hence 
Samuel's  defence  probably  alludes  to  the  well-established 
custom  of  the  makom  priest  to  assist  in  the  negotiation 
between  the  roseah  and  the  family  ^6?'^/. 

Moreover,  the  word  kofer  occurs  thirteen  times,  and  the 
Authorized  Version  renders  it  ransom  in  eleven  of  them. 
The  only  other  exception  is  in  Amos  5.  12  where  it  also 
renders  bribe. 

The  proper  word  for  bribe  is  shohad,  which  means  gift, 
since  the  ancient  Hebrews  believed  that  a  gift  to  a  public 
official  by  a  person  who  had  or  was  likely  to  have  an 
interest  in  a  matter  before  him,  was  a  bribe.  It  occurs 
twenty-one  times,  and  in  every  instance  the  odious  feature 
S.  E 


50  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

appears  that  it  is  designed  to  curry  favour  with  a  person  in 
power.  The  guilty  (rasha)^  says  Prov.  17.  23,  proffers 
shohad  to  avert  justice,  and  Micah  (3.  11)  describes  judicial 
depravity  with  the  bitter  words  :  They  judge  for  shohad. 

While  shohad  means  giving  something  for  a  considera- 
tion which  no  man  will  avow,  kofer  conveys  the  idea  of 
a  valuable  consideration.  The  money  is  due  as  ransom, 
solace  or  atonement  for  an  injury  committed.  It  is  the 
zvergild  or  damages  paid  by  one  who  has  killed  another 
to  the  head  of  the  decedent's  family  or  clan,  and  received 
by  the  latter  in  satisfaction  and  discharge  of  all  claims  and 
animosities. 

However  inveterate  a  custom  like  kofej^  may  have  been, 
the  idea  that  the  priests  would  abuse  their  functions  in 
relation  to  it,  would  be  sure  to  grow  and  to  engender 
bitterness.  Popular  hatred  would  not  nicely  discriminate 
between  shohad  and  the  profits  of  kofer,  and  in  fact  we  find 
that  Samuel's  sons  were  charged  outright  with  taking 
shohad  (1  Sam.  8.  3). 

The  one  other  instance  in  which  kofer  is  rendered  bribe 
throws  some  light  on  the  inveteracy  of  custom.  That  the 
Northern  Kingdom  was  slower  than  the  Southern  in  purify- 
ing the  Hebrew  law  of  Canaanite  admixture,  is  highly 
probable.  Amos  (about  750  B.C.)  visited  the  Northern 
Kingdom,  apparently  for  the  purpose  of  effecting  some 
reforms  in  that  respect.  That  his  utterances  attracted 
attention  appears  from  the  fact  that  he  was  directed  to 
leave  the  country,  the  priest  of  Bethel  reporting  to  the 
king  of  Israel  that  the  land  was  not  able  to  bear  all  his 
words  (Amos  7.  10,  12).  Though  not  satisfied  with  con- 
ditions in  his  own  Judah,  Amos  seems  to  have  been 
horrified  by  what  he  saw  in  Israel.     He  comments  par- 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  51 

ticLilarly  on  evasions  of  the  Torah,  and  gives  particulars. 
They  sell  persons  into  slavery  w^ho  are  not  liable  to  this 
punishment  (saddik)  (2.  6) ;  they  violate  certain  purity 
statutes  (2.  7);  they  ignore  the  law  (Deut.  24.  12,  13), 
requiring  that  a  pledged  garment  be  put  in  the  pledger's 
possession  at  night  (2.  8) ;  they  break  the  law  (Num.  6.  3), 
forbidding  strong  drink  to  Nazarites  (2.  12);  they  mock 
those  who  pronounce  judgements  according  to  the  Torah 
(5.  10) ;  they  convict  the  innocent  {saddik)^  they  take  kofer 
(5.  12).  He  implores  them  to  establish  mishpat  (the  law) 
in  the  shciar  (courts)  (5.  15). 

In  this  powerful  invective  he  charges  that  taking  kofeVy 
though  forbidden  by  the  Torah ^  is  still  practised,  and  puts 
the  conviction  of  the  innocent  as  an  antithesis  to  taking 
kofer y  which  is,  in  effect,  letting  off  with  a  fine  some  who 
should  answer  with  their  lives. 

Vendetta  law,  modified  by  kofer,  is  perhaps  the  least 
desirable  of  all,  when  a  state  is  increasing  in  wealth  and 
power.  Violence  by  turbulent  chieftains  is  doubtless  a 
serious  evil  in  the  state,  but  bloodshed  that  may  be  paid 
for  in  money  by  peaceful,  wealthy  citizens  is  much  more     J 

shocking.  ,^_ 

r  "The  time  had  come  when  kofer  for  murder  had  become  1 
I  inconsistent  with  the  safety  of  the  state,  and  Solomon  [ 
I    determined  to  abolish  it,  and  to  enforce  the  Exodus  statute.^/ 

There  is  nothing  in  the  records  to  show  that  the  ^I'hie 
ha-ir  were  deprived  of  their  function.  That  federal  legates 
were  sent  to  sit  with  them,  would  appear  to  be  certain 
from  the  zihie  ha-ir  law  of  Deut.  21.  1-9,  which  pre- 
scribes that  in  murder  cases  where  the  perpetrator  could 
not  be  discovered  the  Kohanwi  {bne-Levi)  were  to  be 
present,  and  that  their  duty  was  to  pronounce  the  law  in 

E  2 


52  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

every  case,  civil  and  criminal  (kol  rib  ive-kol  negd)  (21.  5). 
The  broad  statement  of  their  powers  seems  intended  to 
negative  any  inference  that  their  duty  was  limited  to  the 
particular  kind  of  case  under  discussion. 

There  is,  moreover,  no  hint  that  the  execution  of  any 
judgement  they  might  pronounce  was  to  be  in  any  new 
mode.  Under  the  vendetta-/^^/<?r  law,  the  judgement  doubt- 
less was  that  the  perpetrator  of  the  homicide  was  to  pay 
to  the^^V/of  the  bereaved  family  a  certain  amount  specified 
by  the  zikne  ha-ir,  failing  which  payment  the  go  el  was 
entitled  to  put  him  to  death.  /Motive  and  circumstances 


were  not  inqun*ed  into.  A  Tailing  by  accident  was  not 
dTher^fltlated  Irom  deliberate  assassination.  The  great 
change  to  be  effected  by  the  new  federal  movement  was 
•that  murder  was  to  be  carefully  distinguished  from  man- 
fslaughter,  and  that  neither  kofer  nor  any  other  defence 
or  device  could  save  a  murderer  from  death.  A  fatal  blow 
was  dealt  the  old  pagan  custom  of  sanctuary.  It  was  no 
longer  to  protect  the  murderer.  Thou  shalt  take  him  from 
mine  altar  for  death  (Exod.  21.  14). 

Conc^riiing:  jnanslaughter  the  matter  is  not  so  clear. 
As  the  manslayer  was  still  entitled  to  the  privilege  of 
sanctuary,  and  as  nothing  is  said  about  subsequent  pro- 
ceedings, the  inference  is  that  kofer  for  manslaughter  was 
tolerated.  This  conclusion  is  strengthened  by  the  law 
respecting  the  goring  ox.  If  the  master  knew  of  his  vicious 
habit,  and  allowed  him  to  go  at  large,  and  he  killed  a 
person,  this  was  held  to  be  constructive  murder  by  the 
master,  and  the  punishment  denounced  was  death :  *  the  ox 
shall  be  stoned,  and  his  owner  also  shall  be  put  to  death ' 
(21.  29).  In  this  case,  however,  kofer  is  expressly  allowed 
(21.  30).     As  constructive  murder  is  an  offence  of  a  higher 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  53 

grade  than  manslaughter,  the  probability  that  kofer  was 
allowable  in  the  latter  is  heightened. 

It  may  be  well  worth  while  to  pause  here  for  a  moment 
for  the  purpose  of  comparing  the  Hebrew  law's  view  of      > 
homicide  with  that  of  our  modern  law. 

The  Hebrews  noted  cases  of  voluntary  and  of  involun- 
tary manslaughter  just  as  we  do.  They  did  not,  however, 
hit  upon  any  line  of  division  between  the  two.  Our  common 
law  declares  voluntary  manslaughter  to  be  the  unlawful 
killing  of  another,  without  malice,  on  sudden  quarrel,  or  in  ^r^ 
heat  of  passion.  Involuntary  manslaughter  is,  where  a  man 
doing  an  unlawful  act,  not  amounting  to  felony,  by  accident 
kills  another. 

We  also  have  fi2£ugable_  homicide,  where  a  man  doing 
a  lawful  act,  without  any  intention  to  hurt,  by  accident 
kills  another;  as,  for  instance,  where  a  man  is  hunting 
in  a  park,  and  unintentionally  kills  a  person  concealed. 
This  we  call  homicide  by  misadventure. 

The  Hebrew  law  put  under  one  and  the  same  head  of 
manslaughter,  the  voluntary,  the  involuntary,  and  the 
excusable  homicide  of  our  common  law.  They  recognized 
an  element  of  supernatural  influence  in  them  all  equally, 
and  punished  them  alike. 

To  this  general  classification  there  were  but  two  excep- 
tions: the  constructive  homicide  by  the  gpring  ox,  which 
we  have  just  described,  and  the  act  of  men,  who  in  a  quarrel 
with  each  other,  accidentally  hurt  a  gravid  woman.  The 
provision  is  obscure  and  leads  to  the  suspicion  of  an  injury 
to  the  text.  It  nowhere  speaks  of  the  perpetrator  as  killing 
the  woman,  or  of  the  victim  as  dying.  It  names  two  kinds 
of  result  to  the  woman,  one  where  there  is  no  ason^  and  the 
other  where  there  is  ason.     The  term  aso7i  is  defined  a 


54  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

meaning  mischief,  evil,  harm  (Brown-Driver,  p.  62).  That 
miscarriage  should  be  described  as  no  mischief  {welo  .  .  . 
ason)^  and  that  death  should  be  described  as  mischief  {ason)y 
is  certainly  peculiar.  The  one  appears  to  understate  the 
fact,  the  other  to  overstrain  the  w^ord.  We  have  before  us 
a  case  which  was  evidently  part  of  the  Canaanite  common 
law.  The  Code  of  Hammurabi,  as  we  have  seen,  has  pro- 
visions on  the  subject  (Sections  209-14).     It  distinguishes 


the  victims  into  three  classes:  gentleman s  daughter,  poor 
man's  daughter,  and  gentleman's  female  slave.  It  divides  ^ 
the  effect  of  the  injury  into  two  classes:  miscarriage  and 
deatfiT^For  miscarriage  the  damages  are  ten  shekels,  five 
shekels,  and  two  shekels,  according  to  the  social  rank  of  the 
woman  ;  for  death,  the  penalty,  if  the  victim  be  a  gentle- 
man's daughter,  is  the  death  of  the  perpetrator's  daughter  ; 
if  she  be  of  the  other  ranks,  a  half-mina  of  silver,  and  a  third 
of  a  mina  of  silver,  respectively. 

The  Babylonian  law  treated  the  miscarriage  itself  as 
a  punishable jnischief,  while  the  Hebrew  law  in  its  present 
form,  declares  it  to  be  no  mischief,  but  nevertheless  imposes 
punitive  damages  i^anosh  yeanesh).  The  probability  would 
seem  to  be  that  in  the  case  of  accidental  death  like  this, 
the  general  rule  prevailed  that  the  death  penalty  could  not 
be  imposed  for  homicide,  unless  it  was  committed  with 
malice  aforethought.  The  term  ""anoshyeanesh  would  then 
cover  the  whole  case,  ason  or  no  ason.  The  pelilim  would 
make  a  just  appraisement  of  the  damage  suffered  by  the 
woman,  if  she  lived,  or  by  her  husband  in  consequence  of 
her  death.  This  would,  in  effect,  take  the  case  out  of  the 
list  of  criminal  acts  and  reduce  it  to  a  civil  trespass,  for 
which  damages  were  recoverable — a  conclusion  with  which 
our  modern  law  might  readily  concur  (Exod.  21.  ^2-5). 


vt 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  55 

That  the  first  effort  of  the  federal  government  to  revo- 
lutionize the  ancient  practice  was  not  very  successful,  is 
easily  inferable  from  the  fact  that  important  amendments 
to  the  law  were  soon  made.  These  are  incorporated  in  the 
Deuteronomy  statute,  and  the  nature  of  the  changes  leads 
to  the  suspicion  that  the  taking  of  kofer  for  murder  was 
still  practised.  The  family  gdel^  who,  by  immemorial 
custom,  was  entrusted  with  the  death-warrant,  did  not  take 
the  murderer  from  the  altar,  and  it  is  to  be  feared  that  the 
zikiie  ha-ir  and  the  niakom  priest  connived  at  this  breach 
of  the  federal  law.  The  habit  of  collecting  money  damages 
was  deemed  too  valuable  a  privilege  to  abandon  for  the 
sake  of  abstract  justice  or  large  state  policy. 

The  new  remedies  introduced  by  the  Deuteronomy 
statute  were: 

1st.  The  positive  assumption  by  the  state  of  exclusive 
jurisdiction  over  all  homicide  cases,  or,  in  the  words  of  the 
text,  the  acknowledgement  of  national  blood-guilt  {dam) 
for  homicide. 

and.  The  abolishment  of  the  ancient  right  of  the  family 
go'el  to  receive  the  warrant  of  execution  from  the  zikne 
ha-'^ir^  and  the  compulsory  duty  of  the  latter  to  entrust 
it  to  a  newly  created  federal  officer  for  each  canton — the 
go' el  ha-darn — who  is  not  the  family  go  el. 

3rd.  The  abolishment  of  sanctuary  for  homicide  and  the 
exclusion  of  the  makom  priests  from  any  concern  therein. 

4th.  The  establishment  of  three  judicial  districts,  and 
the  setting  apart  of  one  city  in  each  to  which  every 
perpetrator  of  a  homicide  must  go. 

5th.  The  total  abolishment  of  kofer  for  manslaughter^ 
and  the_substitution  therefor  of  internment  in  the  separated  ^ 
city,  as  punishment  for  the  crime. 


J 


56  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

6th.  A  marked  change  in  the  law  of  evidence,  by  which 
the  testimony  of  one  witness  only  became  incompetent  to 
convict. 

As  regards  the  first  and  second  of  these  points,  it  is  to 
be  remarked  that  the  name  go' el  ha-dam  was  the  mere 
adaptation  of  a  word  in  common  use  :  go  el.  The  go' el  was 
that  member  of  the  family  who,  when  it  lost  its  head, 
was  the  next  friend  ;  a  kind  of  sublimated  executor  and 
guardian,  who  looked  after  the  interests  of  his  kinsmen 
in  trouble.  And  now  it  was  the  state  whose  new  measures 
and  principles  avowed  that  it  had  incurred  blood-guilt 
{dam,  damim) ;  that  an  evil  fate  threatened  the  country, 
unless  this  blood-guilt  was  redeemed  or  removed. 

A  gdel  or  redeemer  was  needed,  and  thus  the  gdel 
ha-dam,  a  being  never  heard  of  before,  was  created.  He 
was  the  state's  redeemer  from  blood-guilt,  not  the  avenger 
of  the  victim's  blood.  Had  he  been  the  latter,  he  would 
have  been  nokem  ha-dam. 

The  confusion  that  exists  has  arisen  out  of  the  double 
meaning  of  dam^  blood  and  blood-guilt,  accompanied  by 
an  exaggerated  notion  of  ancient  views  concerning  the 
sanctity  of  blood.  The  Hebrews  forbade  the  drinking  of 
blood,  because  nations  with  whom  they  came  in  contact 
practised  this  habit,  in  association  with  other  habits  and 
rites  which  the  Hebrews  deemed  demoralizing.  Dam 
means  blood.  It  also  means  blood-guilt,  and  even  in  this 
sense  it  means  two  kinds  of  blood-guilt — the  primary  blood- 
guilt  of  the  perpetrator,  and  the  secondary  blood-guilt  of 
the  community  which  the  latter  incurs  by  its  failure  to 
prevent  the  killing,  an  error  which  it  must  expiate,  either 
by  punishing  the  slayer,  or,  if  he  remains  undiscoverable, 
then  by  formal  legal  ceremony.     It  is  with  this  secondary 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  57 

blood-guilt,  the  communal  blood-guilt,  that  our  investiga- 
tions are  more  immediately  concerned.  Its  name  is 
sometimes  dam,  sometimes  damim. 

We  have,  in  our  first  lecture,  referred  to  the  striking 
passage  of  Genesis  (9.  5),  which  refers  the  origin  of  this 
keen  sense  of  communal  responsibility  to  the  direct  in- 
struction of  Noah  by  EloJiim^  at  the  very  beginning  of  the 
new  world  after  the  Deluge^ 

The  same  view  is  expressed,  or  implied,  in  other 
passages : 

Ye  shall  not  pollute  the  land  wherein  ye  are ;  for  blood - 
guilt  (ha-dam)  defileth  the  land,  and  the  land  cannot  be 
cleansed  {yektippar)  from  the  guilt  of  blood  {la-dam)  shed 
therein,  save  by  the  blood  of  him  that  shed  it.  Defile  not 
therefore  the  land  which  ye  shall  inhabit,  wherein  I  dwell 
(Num.  o.S-  ?,?,,  34). 

That  dam  naki  be  not  shed  in  thy  land,  which  JHVH, 
thy  Elohim,  giveth  thee  for  an  inheritance,  and  so  blood- 
guilt  (damim)  be  upon  thee  (Deut.  19.  10). 

Jeremiah  expresses  the  same  idea : 

If  ye  kill  me,  ye  bring  the  guilt  for  innocent  blood  {dam- 
naki)  on  yourselves,  on  this  city,  and  on  its  inhabitants 
(Jer.  26.  15). 

And  Joel  does  the  same: 

I  will  cleanse  their  blood-guilt  {ive-nikketi  damam)  that 
I  have  not  cleansed;   for  JHVH  dwelleth  in  Zion   (Joel 

4  (3)-  21). 

We  have,  moreover,  the  impressive  ceremony  of  com- 
munal purgation  from  this  kind  of  blood-guilt  in  Deut. 
21.  1-9. 

By  the  force  and  operation  of  the  new  federal  policy 
the    realization    of    communal    responsibility   for    murder 


53  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

became  much  keener  in  the  Hebrew  state  than  it  is  in  our 
modern  conditions.  They  also  felt  a  more  urgent  responsi- 
bility for  their  own  share  in  any  transaction  which  might 
result  in  loss  of  life,  as  is  seen  in  this  provision : 

When  thou  buildest  a  new  house,  then  thou  shalt  make 
a  battlement  for  thy  roof,  that  thou  bring  not  blood-guilt 
(damini)  upon  thine  house  if  any  man  fall  from  thence 
(^Deut.  22.  8). 

This  extreme  sensitiveness  concerning  blood-guilt  was 
not  due  to  the  fear  of  savage  reprisal,  as  has  been  com- 
monly thought.  The  instance  just  given  is  clearly  an 
ancient  urban  regulation,  expressing  developed  feelings  and 
not  primitive  passions. 

So  insistent  did  this  notion  of  blood-guilt  become  that 
it  cropped  out  everywhere.  If  the  law  proclaimed  capital 
punishment  for  an  offence,  it  conceived  blood-guilt  as  some- 
how inseparable  even  from  a  legal  execution,  and  got  rid  of 
it  by  ascribing  the  blood-guilt  to  the  convicted  defendant 
himself,  whose  bad  conduct  compelled  the  state  to  slay 
him.  The  terms  are:  dainaw  bo,  the  blood-guilt  for  him  is 
upon  himself  (Lev.  20.  9) ;  demehem  bam,  the  blood-guilt 
for  them  is  upon  themselves  (Lev.  20.  11,  12,  13,  16,  27; 
I  Kings  2.  2)?!)' 

A  community  so  impressed  with  the  awfulness  of  blood- 
guilt  will  do  all  in  its  power  to  avoid  it.  There  is  need  for 
untiring  vigilance  to  ward  it  off.  The  functionary  whose 
office  it  is  to  see  to  the  community's  expiation,  may  well  be 
called  the  community's  next  friend.  And  for  this  position 
there  is  no  Hebrew  word  more  apt  than  go  el  ha-dam,  the 
next  friend  of  the  community  in  warding  off  its  blood-guilt. 

According  to  this  view  the  word  go  el  expresses  a  direct 
relation  with  the  community,  and  the  word  ha-davi  a  con- 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  59 

dition  of  the  community  which  is  to  be  protected  by  that 
relation.  The  common  notion  is  that  the  direct  relation  of 
t\iQ  go'el  ha-dam  is  with  the  criminal.  Go  el  is  held  to  be 
the  avenger  who  smites  the  criminal,  and  ha-dam  is  not  the 
blood-guilt  of  the  community,  but  the  blood  of  the  victim. 
ThQ  go'el  ka-dain  would  thus  be  the  avenger  of  the  victim's 
blood.  The  contrast  is  sharp.  On  the  one  hand  the  com- 
munity's friend  and  saviour  ;  on  the  other,  the  criminal's 
vengeful  enemy. 

In  support  of  the  former  view,  it  may  be  said  that  no 
instance  can  be  found  where  go  el  does  not  mean  one  who 
has  a  friendly  function  to  perform,  a  function  which  has 
a  sustaining  effect  on  the  person  for  whom  he  acts,  whose 
go'el  he  is. 

When  one  exhibits  his  friendliness  by  injuring  his  client's 
adversary,  he  is  no  longer  go''el^  but  nokem,  avenger. 

Isa.  63.  4  brings  this  out  clearly.  JHVH  is  repre- 
sented as  going  forth  to  take  vengeance  on  Edom  for 
wrongs  it  has  perpetrated  against  His  people  Israel,  and 
as  declaring : 

The  day  of  vengeance  {yoin  nakain)  (against  Edom)  is 
in  my  heart. 

The  year  of  my  redeemed  (sJienat  ge'ulai)  (Israel)  is 
come.  And  in  ver.  8  this  relation  between  JHVH  and 
Israel  is  expressed  by  the  parallel  term  moshia  (saviour), 
while  in  ver.  9  both  terms  are  used  together — hoshV am  and 
ge'alam. 

That  go'el  is  uniformly  used  as  here  contended,  let 
numerous  instances  attest : 

Jacob  invokes  for  Joseph's  sons  the  blessing  of  his 
protecting  angel  {Jia-matak  ha-gdel)  (Gen.  48.  16). 

JHVH   promises  to  redeem   Isrsicl  (we-ga'alli)  (Exod. 


6o  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

6.  6),  and  in  the  song  of  Moses  is  worshipped  for  having 
done  it  (gaalta)  (Exod.  15.  13). 

In  Lev.  25,  the  redemption  of  the  former  owner  of 
land,  sold  by  him,  is  spoken  of,  and  it  has  the  technical 
name  of  gehillah  (25.  24),  and  his  act  in  so  redeeming  is 
called  yigal  (25.  33). 

If  he  be  too  poor  to  redeem,  his  next  of  kin  shall  do 
so  for  him  {gdal)^  and  this  friendly  redeemer  is  the  go  alo 
ha-karob  elazv  (25.  25). 

Among  the  list  of  those  who  shall  act  as  god  are  the 
uncle,  the  uncle's  son,  or  indeed  any  near  kinsman  {sheer 
besaro)  (25.  49). 

When  Zimri  exterminated  the  whole  house  of  king 
Baasha  of  Israel,  he  left  none  of  his  gdalim  or  re'^im  alive 
(i  Kings  16.  11). 

Jeremiah  uses  the  word  in  the  same  sense  of  redemp- 
tion— ge'ttllak  (Jer.  32.  7,  8). 

He  (Boaz)  is  one  of  our  near  relatives,  of  our  gdalim 
(Ruth  2.  20 ;  3.  9,  12,  13  ;  4.  i-io ;  4.  14). 

Thus  it  is  seen  that  the  word  gdel  presents  only  the  idea 
of  service  rendered  to  the  friend  by  an  act  making  directly, 
and  not  indirectly,  for  his  benefit.  It  is  true  that  such 
a  gdel  might  render  a  kind  of  doubtful  indirect  service 
to  his  friend  by  hurting  the  latter's  enemy.  When  such 
is  the  case,  the  word  gdal  does  not  present  itself  to  the 
Hebrew  mind  as  describing  the  act.  As  we  have  seen  from 
Isa.  ^^,  4,  it  is  nakain  which  describes  the  vengeful  aspect 
of  an  act,  because,  however  friendly  it  may  be  to  the 
beneficiary,  it  is  hurtful  to  the  victim.  Indeed,  it  is  the 
only  true  Hebrew  word  for  vengeance,  though  there  may 
have  been  a  dialectal  variation  of  it  (iiaham)  which  Isaiah 
uses  in  alliterative  parallelism. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  6i 

JHVH,  the  abir  of  Israel,  says  : 

Oh,  I  will  ease  me  {ennahein)  of  mine  adversaries,  and 
avenge  me  [innakemah)  of  mine  enemies  (Isa.  i.  24). 
And  he  uses  the  word  nakarn  in  the  same  sense  frequently 

(34.  H;  35-4;  47.3;  59.  17;  61.2). 

Whoever  slayeth  Cain,  ven^^eance  shall  be  taken  on  him 
iyukkaiii)  (he  shall  be  punished)  sevenfold  (Gen.  4.  15  ;  4.  24). 

Thou  shalt  not  avenge  {tikkom)  nor  bear  grudge  {tittor) 
(Lev.  19.  i«). 

Avenge  {iiekom  iiikmat)  the  Bne-Israel  of  the  Midianites 
(Num.  31.  2,  3). 

Mine  is  punishment  {iiakam)  and  recompense  {shillem) 
(Deut.  32.  3.5). 

If  I  whet  my  glittering  sword  and  mine  hand  take  hold 
on  judgement,  I  will  punish  (iiakam)  mine  enemies,  and 
will  recompense  {ashallem)  them  that  hate  me  (Deut.  32, 41). 

And  the  sun  stood  still 

And  the  moon  stayed 

Until  the  people  had  avenged  them  (ad yikkom  goy)  of 
their  enemies  (Joshua  10.  13). 

Samson  shouted  at  the  Philistines :  Nikkamti  bakem  (I 
will  be  avenged  on  you)  (Judges  15.  7  ;  16.  28). 

It  is  God  who  vouchsafed  me  vengeance  {iiekamot)^ 

And  subjected  peoples  to  me  (2  Sam.  22.  48). 

Jeremiah  uses  the  word  frequently  (11.  20 ;  20.  10,  12  ; 
46.  10 ;  50.  28  ;  51.  6,  36),  as  does  Ezekiel  (24.  8  ;  25.  I2, 
14,  15,  17).     Nahum  does  the  like  (i.  2),  as  does  Proverbs 

(6.  34). 

Perhaps  the  most  impressive  use  of  the  word  nakam 
in  this  connexion  is  found  in  passages  in  which  it  is 
employed  to  denote  vengeance  against  murderers. 

He  will  avenge  {yikkom)  the  blood  {dam)  of  his  servants 


62  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

And  inflict  vengeance  {fiakam)  on  his  adversaries  (Deut. 

3^-  43). 

I  will  avenge  the  blood  {zve-itikkamti  damim)  of  my 
servants,  the  prophets,  and  the  blood  {damim)  of  all  the 
servants  of  JHVH  at  the  hand  of  Jezebel  (2  Kings  9.  7). 

In  law,  too,  the  word  iiakam  is  used  technically  to 
denote  punishment  of  a  severe  kind  (Exod.  21.  20,  21). 

The  examples  given  fairly  justify  the  conclusion  that 
the  go  el  ha-dam  was  the  public  executioner,  who,  by  ful- 
filling the  death-sentence  against  murderers,  relieved  the 
community  of  its  secondary  blood-guilt. 

That  the  term  should  in  time  become  disagreeable,  and 
even  odious,  is  inevitable.  In  our  own  language  there  is 
a  sense  of  shudder  in  the  word  executioner,  which  was  even 
more  lively  in  its  predecessor  '  headsman  '. 

We  have  now  reached  a  point  at  which  we  may  pause. 
The  old  Hebrew  law  of  Exodus  has  been  analysed,  the 
opposition  to  its  enforcement  explained.  The  stern  justice 
of  the  state,  under  the  guidance  of  the  great  king,  has 
entered  into  a  death-struggle  with  the  crude  ^^/^r-justice 
of  bygone  ages.  Makoin  priests  and  zikne  ha-ir  are,  some 
openly,  some  covertly,  satisfied  with  the  old  and  alarmed 
at  the  new.  The  vigorous  blow  at  sanctuary,  constricting 
its  jurisdiction  and  limiting  its  power,  is  received  with  ill- 
concealed  hostility.  The  substitution  for  the  substantial 
advantage  of  kofer  of  an  idea,  an  ideal — ^justice — a  thing 
barren  of  personal  profit,  seems  like  the  destruction  of  a 
valuable  kind  of  property,  the  extinction  of  a  vested  right. 

In  our  next  lecture  we  shall  proceed  with  the  further 
examination  of  the  Deuteronomy  texts,  whose  general  effect 
we  have  stated. 


Ill 


The  Deuteronomy  texts  on  the  subject  of  homicide  are 
three  in  number,  and  are  contained  in  chapters  4,  19,  and 
11,  Two  of  them,  those  in  chapters  4  and  27,  we  may  at 
once  set  aside  as  having  no  important  bearing  on  our 
investigation. 

The  first  (4.  41-3)  is  a  mere  historical  note,  stating  that 
Moses  severed  three  cities  east  of  Jordan,  whither  the 
roseaJt  bi-bli-ddat  might  flee  {la-mis)^  he  not  entertaining 
hatred  against  him  {lo  sone-lo)  before. 

There  is  here  no  attempt  to  define  murder.  There  is, 
however,  an  interesting  novelty.  Manslaughter  is  character- 
ized by  a  term  which  is  not  used  in  Exodus.  There  the 
expression  is  that  God  had  dehvered  the  unfortunate  victim 
into  the  slayer's  hand  {Jia-elohim  innah  leyado).  Here  it  is 
bi-bli-ddat,  that  he  had  acted  without  intent,  that  he  had 
acted  on  the  spur  of  the  moment.  In  the  latter  sense  of 
stunning  suddenness,  the  expression  occurs  in  Job  36.  12. 
Isaiah  (5.  13),  too,  uses  the  related  expression,  mibbeli-ddat, 
in  the  same  sense.  In  short,  the  idea  that  death  resulting 
from  a  sudden  quarrel  in  hot  blood  is  not  murder,  which 
prevails  in  the  Exodus  text,  is  not  departed  from  by  the 
use  of  the  new  expression. 

The  third  Deuteronomy  text  on  the  subject  of  murder 
is  one  line  of  the  old  Artir-codo:  (27.  15-25) :  Ariir,  he  who 
slays  his  neighbour  by  stealth  {makkeh  reeJm  ba-seter) 
(27.  24). 

Here  the  term  ba-seter  conveys  the  idea  of  being  under 
cover  (lying   in  wait),  just   as   do   the   words  sadah  and 

63 


> 


64  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

be-onnah  in  the  Exodus  text.  (Examples  of  its  use  in  an 
analogous  sense  are  i  Sam.  19.  2;  25.  20 ;  2  Sam.  12.  12.) 

The  important  Deuteronomy  text  is  the  second,  the 
long  one  in  the  nineteenth  chapter.  It  opens  with  the 
command  to  divide  the  country  west  of  Jordan  into  three 
districts,  to  set  apart  one  city  in  each  of  said  districts,  and 
to  construct  a  road  to  it  in  order  that  every  slayer  {roseah) 
may  flee  thither  {yaniis).  It  then  describes  the  slayer  who 
is  not  subject  to  the  death-penalty,  using  the  expressions 
employed  in  the  first  Deuteronomy  text,  bi-bli-ddat  and 
lo  sone  mittemol  shil shorn  (without  intent  or  previous  hatred). 
One  single  case  is  there  presented,  apparently  as  an  illustra- 
tion of  what  is  meant  by  bi-bli-dci  at.  A  man  goes  into  the 
forest  with  his  neighbour  to  hew  wood,  and  in  felling  a 
tree  the  head  of  the  axe  slips  from  the  helve,  hits  his 
neighbour  and  kills  him. 

That  this  is  bi-bli-ddat  is  obvious,  but  it  is  so  far  short 
of  illustrating  the  whole  meaning  of  that  term,  that  one 
is  inclined  to  believe  that  the  case  put  really  belongs  to 
a  series  similar  to  those  presented  in  Numbers,  and  that 
it  was  either  misplaced,  or  alternatively,  that  it  was  deemed 
unnecessary  to  repeat  the  cases  already  given  in  Numbers, 
and  they  were  therefore  omitted  as  superfluous  repetition. 

Some  such  conclusion  is  inevitable,  when  we  consider 
the  definition  of  murder,  which  immediately  follows.  It  is 
there  described  as  the  act  of  killing  a  sone  (a  hated  person), 
by  lying  in  wait  for  him  {we-arab  lo). 

The  word  arab  in  this  connexion  is  new,  not  being 
used  in  the  Exodus  text.  There  the  idea  of  lying  in  wait 
is  expressed  by  the  words  sadah  and  be-ormah.  It  is, 
however,  a  word  in  general  use,  and  conveys  exactly  the 
same  idea  as  the  expressions  employed  in  the  Exodus  text. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  65 

This  definition  of  murder  excludes  from  that  category- 
all  the  cases  of  manslaughter  derivable  from  the  Exodus 
text,  and  from  the  term  bi-bli-ddat  of  this  text.  It  may 
therefore  be  regarded  as  certain  that  the  single  illustration 
of  manslaughter  (that  in  the  fifth  verse)  is  not  intended  to 
be  exhaustive.  Several  other  forms  of  manslaughter,  such 
as  those  we  have  already  inferred  from  the  Exodus  text, 
and  such  others  as  are  given  at  length  in  the  Numbers 
text,  are  within  the  meaning  and  under  the  protection  of 
this  statute. 

Passing  by  the  definition  of  the  offence,  we  come  to  the 
main  purpose  of  the  statute. 

The  experiment  of  limiting  and  restraining  the  power 
of  the  sanctuary  had  not  proved  successful.  Sanctuary  was 
therefore  definitely  abolished.  The  makom  and  the  mizheah 
were  no  longer  of  any  avail.  The  makom  priest's  function, 
so  far  as  homicide  was  concerned,  was  at  an  end. 

The  land  west  of  Jordan  was  divided  into  three  districts, 
in  each  of  which  a  particular  city  was  to  be  designated, 
and  to  each  of  these  cities  there  were  to  be  highways.  The 
roseah  might  flee  {y antes)  to  the  designated  city  of  his 
district — that  was  the  purpose  of  the  institution. 

For  the  first  time  we  hear  of  the  go'el  ha-dam,  the 
federal  ofificer  detailed  to  every  canton  as  sheriff  or  exe- 
cutioner, to  see  that  the  punishment  imposed  by  federal 
law  should  be  visited  upon  the  culprit,  and  to  guard  against 
the  latter's  escape  by  means  of  kofe}'  or  otherwise. 

If  the  rosejaJLh.2.^  killed  any  one,  hi-bli-ddat^  is  guilty  of 
manslaughter,  he  must  bear  the  punishment.  No  kofer 
will  be  allowed.  He  must  go  to  the  designated  city  (a 
state-prison  city),  there  to  expiate  by  internment  his  offence 
of  'manslaughter.  If  he  do  not;  no  agreement  for  kofer 
S.  F 


66  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

with  the  dead  man's  family,  or  with  their  go  el,  with  or 
without  the  connivance  of  the  zikne  ha-^ir,  will  protect  him. 
He  must  die ;  the  go  el  ha-dam  must  put  him  to  death. 
A  reasonable  fixed  time,  the  length  of  which  does  not 
appear  from  the  records,  was,  however,  allowed,  to  enable 
him  to  reach  the  designated  city.  If  he  dawdled  by  the 
way  and  exceeded  the  time,  he  was  amenable  to  the  power 
of  t\\Qgd'elka-dam,  and  paid  for  his  carelessness  with  his  life. 

This  rigid  law  was  the  reason  for  the  strict  injunction 
that  the  road  should  be  in  proper  order,  lest  the  culprit 
be  delayed  by  reason  of  its  imperfection,  and  thus  perish  by 
the  public's  neglect  to  keep  the  highway  in  proper  repair, 
without  any  delinquency  on  his  part. 

There  is  in  this  text  a  clear  indication  of  the  procedure. 
The  man  who  had  killed  another  was  tried  by  the  zihte 
ha-ir.  The  latter  ought  to  have  administered  the  Hebrew 
law,  that  is,  they  should  have  carefully  examined,  in  order 
to  determine  whether  the  offence  was  murder  or  man- 
slaughter. They  were,  however,  as  a  rule,  disinclined  to 
enforce  the  Hebrew^  law,  because  a  conviction  of  murder, 
punishable  by  death,  would  take  away  the  family's  oppor- 
tunity for  money  damages.  Their  inclination  would  be  to 
find  the  offence  manslaughter,  especially  because  the 
Canaanite  law  knew  nothing  of  degrees  of  guilt  in  homicide. 
Whichever  the  finding,  murder  or  manslaughter,  the  convict 
would  have  to  go  to  the  separated  city,  if  he  would  escape 
death,  since  in  either  case  the  go  el  ha-dam  had  a  warrant 
for  his  execution  after  the  lapse  of  the  given  number  of 
days  allowed  the  culprit  to  reach  the  designated  city. 
This  warrant  ran  everywhere,  except  within  the  designated 
city. 

If  the  conviction  was  of  murder,  the  culprit's  object 


THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE  67 

was  to  take  an  appeal ;  if  of  manslaughter,  to  undergo  the 
penalty  of  internment.  The  Deuteronomy  text  gives  us  no 
clue  as  to  the  nature  or  whereabouts  of  this  appellate 
tribunal.  One  might  conjecture  that  the  three  districts 
were  somehow  connected  with  Solomon's  division  of  the 
country,  as  related  in  i  Kings  4,  and  that  each  of  the 
designated  cities  had  a  royal  governor  to  whom  certain 
powers  in  this  connexion  were  confided.  However  that 
may  be^  there  must  have  been  some  superior  federal 
authority  in  the  designated  city.  The  zihie  ha-ir  who 
had  condemned  the  man  for  murder,  applied  to  this 
authority  to  surrender  the  appellant.  There  were,  naturally, 
cases  in  which  the  slayer,  without  waiting  for  the  discovery 
of  his  crime,  or  for  his  trial,  would  promptly  make  the 
best  of  his  way  to  the  separated  city,  where  he  could  tell 
the  story  of  the  happening,  in  his  own  way,  to  the  zikne 
ha-ir^  who,  not  being  of  the  immediate  vicinage,  would 
have  no  further  information  on  the  subject,  and  would 
provisionally  receive  him  into  the  city,  where  he  was  safe 
from  the  warrant  of  the  go  el  ha-dam.  In  such  cases  the 
zikne  ha-ir  of  his  own  city  would  try  him  in  his  absence, 
and,  in  many  cases,  the  result  would  be  conviction. 
Whether  convicted  in  his  absence  or  in  his  presence,  the 
zikne  ha-ir  of  his  own  city,  who  had  condemned  him, 
would  have  the  right  to  ask  for  his  extradition. 

That  the  case  was  promptly  heard  and  disposed  of, 
there  can  be  no  doubt.  If  the  appellate  authority  (what- 
ever it  was)  affirmed  the  judgement  of  the  zikne  Hro^  they 
surrendered  the  culprit  to  the  latter,  and  thereupon  they, 
the  zikne  Hro,  delivered  the  prisoner  to  th.Q  go' el  ha-dam  for 
execution.  It  must  follow,  as  a  matter  of  course,  that  if  the 
appellate  authority  was  of  opinion  that  the  defendant  was 


68  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

not_guilty  of  murder,  but  of  manslaughter  only,  they 
retained  him  in  the  designated  city,  for  the  expiation  of 
the  minor  crime.  No  mention  is  made  of  the  term  of 
detention,  and  it  may  have  been  for  life.  The  circumstances 
showThat  all  opportunity  for  kofer  was  intended  to  be 
taken  away.  The  gdel  ha-dam  did  not  represent  the 
family,  there  was  no  makom  priest  to  act  as  mediator,  and 
even  if  a  settlement  had  somehow  been  effected,  it  would 
not  have  helped  the  culprit.  As  soon  as  he  left  the 
separated  city,  the  inflexible  go  el  ha-dam  was  compelled 
by  his  warrant  to  put  him  to  death  (Deut.  19.  12). 

An  interesting  feature  of  this  nineteenth  chapter  is  the 
announcement  of  what  was  evidently  a  novel  principle  in 
the  law  of  evidence.  It  must  always  be  remembered  that 
in  the  Oracle  trials  witnesses  as  such  had  no  function.  The 
denunciant  or  denunciants,  under  solemn  adjuration,  made 
their  statements,  and  on  them  the  Oracle  decided,  there 
being  no  issue  joined  between  parties. 

Doubtless,  on  the  discontinuance  of  the  federal  oracle 
tribunal,  the  denunciant  took  on  the  character  of  witness 
(;ed).  The  whole  literature  shows  that  denunciants  were 
objects  of  hatred  and  fear  to  the  general  community,  and 
a  sentiment  against  convicting  a  man  on  their  unsupported 
testimony  naturally  grew.  Hence  the  law  of  19.  15  :  One 
witness  shall  not  be  allowed  to  testify  against  a  man  for 
any  ^awon  or  hattat  (i.e.  any  crime  or  misdemeanour) ;  at 
the  mouth  of  two  witnesses  or  of  three  witnesses  shall  the 
matter  be  established. 

The  statute  also  contained  a  special  clause  permitting 
the  impeachment  of  witnesses  in  cases  of  sarah  (a  capital 
offence),  and  prescribing  death  as  the  punishment  for  perjury 
in  such  cases. 


V 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  69 

There  is  one  expression  in  the  text  which  requires  an 
explanation.  Dwelling  upon  the  necessity  of  building  a 
proper  highway  to  the  designated  city,  in  order  that  the 
defendant  may,  in  the  hmited  time  allotted,  reach  that 
city,  these  words  are  used  (I  cite  from  the  Authorized 
Version) :  Lest  the  avenger  of  the  blood  pursue  the  slayer, 
while  his  heart  is  hot  (ki yekam  lebabo),  and  overtake  him, 
because  the  way  is  long,  and  slay  him  (19.  6). 

From  these  words  a  picture  has  been  drawn  in  many 
minds,  something  like  this  :  A  man  accidentally  kills  another. 
Immediately  he  starts  to  run  for  the  designated  city,  hotly 
pursued  by  the  go'el  ha-dain,  and  then  there  is  a  race 
between  the  two  for  the  gate  of  the  designated  city,  which 
is  the  goal.  This  view  naturally  assumes  that  a  valid 
vendetta  law  exists  alongside  of  a  thoroughly  established 
state  law  and  nullifies  it,  and  that  such  nullificatioti  is  itself 
part  of  the  state  law.  That  this  is  an  impossible  position, 
I  have  endeavoured  to  demonstrate.  Besides  the  intrinsic 
absurdity  of  the  view,  a  word  must  be  said  of  the  peculiarity 
of  the  transaction. 

The  Version  renders  ki  by  while.  Because  would  be  at 
least  as  good  a  translation.  It  takes  the  expression  his 
heart  is  hot  for  wild,  undiscriminating  rage,  in  which  the 
worthy  man  is  unable  to  distinguish  between  a  cowardly 
assassination  and  an  obvious  accident.  The  phrase  is  a  rare 
one.  It  does,  however,  occur  in  another  place  (Ps.  39. 4  (3)). 
The  singer  utters  a  penitential  psalm.  He  has  been  afflicted, 
and  knows  that  his  own  backslidings  are  to  blame.  He 
humbly  prays  to  know  his  end,  his  hope  is  in  the  Lord  that 
he  may  be  delivered  from  all  his  transgressions  and  recover 
his  former  health.  The  state  of  mind  when  he  thought 
these  things,  and  before  he  spoke,  he  describes  as  ham  libbi 


70  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

(my  heart  was  burning  (or  hot)  within  me),  meaning  that  he 
hesitated  to  utter  his  prayer  though  he  earnestly  desired 
to  do  so. 

At  most,  therefore,  the  expression  in  our  text  would 
mean  :  For  the  go  el  ha-dam  is  earnest  (zealous),  and  might 
overtake  and  slay  him  if  he  be  delayed  by  bad  roads. 

There  is  an  antithetical  expression  which  confirms  this 
view.  When  Jacob's  sons  told  their  father  the  marvellous 
tale  of  Joseph's  high  state  in  Egypt  he  could  not  at  once 
believe  it  {wayaphog  libbd),  Konig's  Wdrterbuch  (Leipzig, 
1 910)  renders  this  with  erkalten^  so  that  Jacob's  heart  would 
have  become  cold  on  hearing  the  narrative.  The  misunder- 
standing is  produced  by  the  use  of  the  word  heai't.  In 
English  we  do  not  use  it  in  that  connexion.  We  receive 
news  coldly  or  with  warmth,  without  mentioning  our  hearts. 
The  Hebrews,  when  they  mentioned  them,  meant  no  more 
than  we  do. 

All  that  is  meant  by  the  sentence  is  that  the  go'el 
ha-dam  would  surely  execute  his  warrant  if  the  defendant 
tarried  beyond  his  allotted  time. 

If  this  explanation  be  rejected,  the  fact  still  remains 
that  the  code  as  now  before  us  was  fixed  at  a  time  when 
the  whole  institution  had  become  a  thing  of  the  past,  and 
was  therefore  subject  to  the  interpretation,  or  misinterpreta- 
tion, of  a  later  age. 

Respecting  the  change  in  the  law  of  evidence  for- 
bidding the  taking  of  the  testimony  of  one  witness,  it  may 
be  remarked  that  the  records  establish  it  as  having  been 
made  very  early  in  the  new  movement.  When  Naboth  was 
charged  with  blasphemy  against  God  and  treasonable 
utterances  against  the  king,  it  was  assumed  as  a  matter  of 
course  that  two  witnesses  were  required  (i  Kings  31. 10, 13). 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  71 

This  was  in  the  reign  of  Ahab  (876-854  B.C.),  who  was 
a  contemporary  of  Jehoshaphat  of  Judah  (873-849  B.C.), 
and  the  narrative  runs  as  if  the  law  were  then  so  old  that 
the  memory  of  its  origin  had  passed  away.  We  cannot  be 
far  wrong  if  we  refer  it  to  Solomon's  day  (970-933  B.C.). 

The  Numbers  text  is  the  next.     In  some  respects  it  is, 
perhaps,  the  most  interesting  of  all. 

The  designated  three  cities  with  their  federal  legate, 
and  their  indefinite  function  of  interference  with  the  zikne 
ha-ir^  have  not  accomplished  the  purpose.  The  go' el  ha- 
dam  has  not  proved  his  ability  to  prevent  the  practice  of 
kofer.  They  have  evidently  learned  how  to  circumvent 
him.  The  whole  institution  is  now  to  be  thoroughly 
remodelled. 

It  begins  with  a  measure  not  only  new  but  subversive 
of  a  well-established  policy.  The  guild  of  Levites  had  early 
been  selected  as  itinerant  agents  to  bring  home  to  each  of 
the  cantons  of  the  country  the  principles  and  policies  of  the 
national  government.  Upon  this  point  the  authorities  are 
overwhelming. 

J  HVH  spake  to  Aaron  :  Thou  shalt  have  no  inheritance 
in  their  land,  neither  shalt  thou  have  any  part  among  them. 
I  am  thy  part  {helek)  and  thy  inheritance  (jiahalah)  among 
the  Bfte-Israel  (Num.  18.  20). 

As  to  the  Levites :  ...  it  is  a  perpetual  statute  {Jiukkat 
^olam)  throughout  your  generation,  that  among  the  Bne- 
Isracl  they  have  no  inheritance  {itahalah)  (Num.  18.  23,  24). 

The  Levites  were  not  numbered  among  the  Bne-Israel, 
because  there  was  no  nahalah  given  them  among  the  Bne- 
Israel  (Num.  26.  62). 

Levi  hath  no  helek  or  nahalah  with  his  brethren.  J  HVH 
is  his  nahalah  (Deut.  10.  9). 


72  THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE 

The  Levite  within  your  country  {be-shaarekeiii)  hath  no 
helek  or  nahalah  with  you  (Deut.  12.  12  ;  14.  27,  29). 

The  Kohanim,the  Levites,  the  whole  tribe  of  Levi,  shall 
have  no  helek  or  nahalah  with  Israel  (Deut.  18.  i). 

JHVH  is  their  nahalah  (Deut.  18.  2). 

Only  unto  the  tribe  of  Levi  he  gave  no  nahalah 
(Josh.  13.  14). 

JHVH,  the  Elohim  of  Israel,  was  their  nahalah 
(Josh.  13.  '^'^y 

Unto  the  Levites  he  (Moses)  gave  no  nahalah  among 
them  (Josh.  14.  3). 

The  fixed  policy  attested  by  these  many  records  may 
already  have  been  somewhat  trenched  upon.  It  was  at  the 
beginning  of  Solomon's  reign  that  he  sent  the  Kohen 
Abiathar  in  disgrace  from  the  court  to  his  estate  (W  sadeka) 
at  Anathot  (i  Kings  2.  26),  which  then  was,  and  till  the 
exile  continued  to  be,  a  Levitical  city.  At  all  events,  the 
decree  went  forth  that  the  Bne-Israel  should  give  to  the 
Levites  a  portion  of  their  own  nahalah  in  the  'arim^ 
together  with  appurtenant  fields  {migrash) ;  that  is,  cantonal 
jurisdiction  over  the  territory  so  given  should  be  abandoned. 
This,  though  violating  the  spirit  of  the  older  law,  was  in 
accordance  with  its  letter,  which  merely  forbade  Levites  to 
have  a  nahalah  within  the  "^arim  {be-shaarekem).  The 
nahalah  now  acquired  by  the  Levites  was  no  longer  u  ithin 
the  ^arim,  but  outside  of  them.  The  Levites  were  citizens 
of  the  federal  state  only,  the  jurisdiction  over  the  newly- 
acquired  territory  was  in  them,  and  the  transaction  was,  in 
effect,  a  cession  of  jurisdiction  over  the  Levitical  territory  to 
the  federal  government. 

It  was  further  enacted  that  out  of  the  forty-eight  federal 
cities  thus  created  (among  which,  by  the  by,  Anathoth  is 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  73 

reckoned  (Josh.  21.  j8)),  there  should  be  six  \ire  ha-miklat 
whither  a  roseah  might  flee  {la-ntts). 

And  thereupon,  the  general  policy  being  thus  explicitly 
declared,  the  specific  purpose  of  the  W^  niiklat  is  enlarged 
upon.  The  roseah  is  now  defined  {'>)^.  12)  as  makkeh  nefesh 
bi-shgagah,  one  who  kills  a  person  without  intending  to  do 
so.  The  city  to  which  he  goes  is  miklat  from  the  gdel^  in 
order  that  the  roseah  may  not  die  before  he  has  been 
adjudged  guilty  of  murder  by  the  federal  court,  the  '^Edah 
{'^^,  11).  Three  of  these  ^are  miklat  shall  be  east  of  Jordan, 
and  three  west  of  it.  The  right  to  a  federal  trial  for  murder 
belongs  not  only  to  the  Bne-Israel,  but  also  to  the  ger  and 
the  toshab.  The  ^Edah  is  the  final  court  of  appeal  to 
determine  whether  the  judgement  of  the  local  ziknc  Jia-Hr 
condemning  the  defendant  to  death  for  murder,  shall  stand 
{^.  24).  The  issue  presented  to  the  ^Edah  is  defined  as 
being  between  the  condemned  man  on  the  one  side  and  the 
go^el  ha-dani  on  the  other. 

If  the  ^Edah  refuses  to  afifirm  the  conviction  of  murder, 
and  declares  the  offence  manslaughter,  the  go  el  ha-dam's 
death-warrant  is  suspended,  but  not  annulled.  The  prisoner 
is  remanded  to  the  */r  miklat^  there  to  remain.  The  term 
of  his  confinement  in  that  city  is  now  fixed.  He  is  to  be 
discharged  at  the  death  of  the  Kohen  ha-gadol  (the  Koheii 
anointed  with  the  holy  oil).  If  he  at  any  time  before 
commits  prison-breach,  that  is,  goes  outside  of  the  city  wall, 
the  go  el  ha-danis  death-warrant  becomes  operative,  and  it 
is  the  latter's  duty  to  execute  the  prisoner.  This  execution 
is  lawful  and  justifiable.  No  blood-guilt  arises  from  it 
{en  lo  dam)  (35.  27). 

At  the  expiration  of  the  prisoner's  term  of  service  the 
death-warrant  loses  all  force  and  validity.     The  manslayer 


74  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

returns  to  his  home  and  estate,  free  from  any  further  conse- 
quences.    His  crime  has  been  fully  expiated  {^^.  28). 

Thereupon  there  is  an  emphatic  prohibition  of  ko/er  in 
murder  cases;  the  murderer  must  be  put  to  death  (35.  31). 
And  this  is  followed  by  an  equally  emphatic  prohibition  of 
ko/er  in  cases  of  manslaughter ;  the  defendant's  term  in  the 
'ir  miklat  may  not  be  evaded  or  abridged  by  compounding 

The  general  policy  is  then  vindicated  by  a  declaration 
of  the  principle  that  murder  pollutes  the  land,  and  that  the 
land  cannot  atone  for  this  pollution  save  by  the  blood  of 
the  murderer  {2^^.  33).  And  this  principle  is  enforced  by 
the  thought  that  JHVH  dwells  in  the  land,  that  JHVH 
dwells  among  the  Bne-Israel  (35.  34). 

To  this  Numbers  text  that  of  Joshua  20  is  a  mere 
pendant.  It  begins  by  directing  the  appointment  of  six 
"^are  ha-miklat,  whither  the  roseah  {makkeh  nefesh  bi-shgagah^ 
bi-bli-daat)  may  flee,  and  they  shall  be  for  miklat  from  the 
go  el  ha-dam  (20.  3).  When  the  defendant  arrives  at  the 
gate  of  the  miklat  city  he  stands  before  the  zikne  ha-Hr  of 
that  city  and  states  his  case.  It  is  safe  to  affirm  that  he 
always  declares  that  it  was  no  murder,  that  ha-elohim  innah 
le-yado^  that  it  was  bi-bli-daat^  that  it  was  bi-shgagah. 

The  hearing  is  unilateral,  being,  in  effect,  a  motion  to 
grant  an  appeal  from  the  judgement  of  the  zekeuiin  of  his 
'/>.  The  probability  is,  that  under  such  circumstances  a 
prima  facie  case  for  granting  the  appeal  was  generally  made 
out,  whereupon  he  was  admitted  for  detention  into  the 
federal  city. 

If  the  zekenim  of  his  city,  or  the  gdel  ha-dam,  believed 
that  there  was  no  proper  case  for  appeal,  the  latter  went 
to  the  Hr  miklat  and  applied  to  the  ziknc  ha-'ir  for  the 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  75 

surrender  of  the  prisoner  to  his  custody.  This  he  was 
compelled  to  do,  because  his  warrant,  though  it  ran  every- 
where else  in  the  country,  was  ineffective  in  the  federal 
territory.  Had  he  executed  it  there,  he  would  have  been 
himself  guilty  of  murder.  It  was  for  this  reason  that  he 
asked  for  the  prisoner's  surrender.  This  was,  in  effect, 
a  motion  to  quash  the  appeal.  Originally  the  zikne  ha-ir^ 
perhaps  in  conjunction  with  a  federal  legate,  heard  the  case 
on  this  motion  and  determined  it.  If  they  decided  to  quash, 
the  prisoner  was  surrendered  to  the  go  el  ha-dam  (Deut. 
J  9.  T2).  Under  the  law,  as  it  was  recast,  the  authorities 
of  the  miklat  city  were  shorn  of  this  power,  and  the  case  had 
to  go  to  the  ^Edah  for  trial  and  judgement  (20.  6). 

And  this  exclusive  jurisdiction  of  the  ^Edah  is  emphati- 
cally reiterated.  '  These  are  the  ^are  ha-miiadah  for  all 
the  Bne-Israel  and  for  the  ger  whither  any  makkeh-nefesh 
bi-shgagah  might  flee  {la-nus)^  and  not  die  by  the  hand  of 
the  go'el  ha-dam  until  he  shall  have  been  adjudged  guilty 
of  murder  by  the  *Edah '  (20.  9). 

There  is  one  other  feature  of  the  Numbers  text  which 
must  not  be  overlooked.  It  is  a  specific  law  of  evidence 
for  homicide  cases  only,  and  reads  thus : 

H omicide  {kol-makkeh-nefesh). 
By  the  mouth  of  witnesses  he   (the  go'el  ha-dam)   shall 
put  the  roseah  to  death.     One  witness  may  not  testify  to 
procure  a  person's  death  (^^,  30). 

There  are  new  features  of  this  Numbers  text  which  are 
worthy  of  remark. 

For  the  first  time  we  hear  of  ^are  miklat.  It  will  be 
remembered  that  in  Exodus  there  was  sanctuary  in  the 
makomy  and  in  Deuteronomy  there  were  separated  cities. 
These  were  all  in  cantonal  territory.     Now  we  have  federal 


76  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

cities  with  a  distinctive  name.  All  the  versions  render  the 
word  miklat  with  refuge  or  asylum.  The  translators,  how- 
ever, all  laboured  under  the  prepossession  that  the  ancient 
institution,  the  sanctuary,  was  still  in  existence,  and  that  it 
permeated  the  law  always.  The  fact  is,  however,  that  the 
establishment  of  the  separated  city  of  Deuteronomy  extir- 
pated the  ancient  sanctuary,  and  created  an  institution 
belonging  purely  to  the  region  of  civil  law.  It  did  more. 
It  gave  a  distinct  punitive  character  to  the  internment  of  the 
manslayer  in  the  separated  city,  though  the  text  lacks 
definiteness  as  to  the  duration  of  the  punishment. 

When  the  system  was  thoroughly  reconstructed,  as  the 
Numbers  and  Joshua  texts  show  it  was,  the  idea  of  the 
Vr  miklat  was  no  longer  doubtful  or  confused.  It  was 
a  place  for  the  detention  of  a  convicted  murderer,  pending 
an  appeal  to  the  federal  court,  the  ^Edah,  and  for  the 
internment  of  a  convicted  manslayer  during  the  term  of 
life  of  the  Kohen  hagadol  then  in  office. 

Refuge  or  asylum  gives  no  adequate  notion  of  these 
functions  of  the  Hr  miklat. 

The  word  miklat  is  obscure.  It  occurs  nowhere  else 
than  in  the  legal  and  historical  passages  we  have  cited,  and 
in  their  doublets  in  Chronicles.  The  root  kalat,  from 
which  it  is  derived,  is  represented  in  but  one  other  passage 
in  the  Bible.  Leviticus  21.  23  speaks  of  a  bullock  or  of 
a  lamb  that  is  not  perfect  enough  to  offer  for  a  vow  {ncder)y 
but  may  be  accepted  for  a  nedabah^  a  gift  (not  for  sacrifice). 
The  characteristics  that  constitute  this  defect  are  spoken  of 
as  sarud  or  kaliit.  The  Authorized  Version  renders  sartca*^ 
by  something  superfltcotis,  and  kahit  by  something  lacking, 
recognizing  a  certain  opposition  between  the  two.  Kautzsch 
understands  the  meaning  of  sania''  to  be  that  the  animal 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  77 

has  a  limb  or  limbs  which  are  too  long,  and  kalut  that  the 
limb  or  limbs  are  too  short.  Strangely  enough,  the  anti- 
thetical word  sariLo'  occurs  only  in  Leviticus,  once  in  the 
instance  cited  and  again  in  21.  18,  where  the  Authorized 
Version  consistently  renders  something  superjlitotis.  Here 
Kautzsch  again  understands  it  to  mean  having  a  limb  or 
limbs  which  are  too  long. 

The  root  sara'  (from  which  sarua'  is  derived)  is  repre- 
sented by  only  one  other  word  in  the  Bible.  Isaiah,  in  the 
course  of  a  bitter  reproach  addressed  to  the  Jerusalem 
magnates,  uses  the  figure  (Isa.  28.  20),  that  the  bed  is  too 
short  for  a  man  to  stretch  himself  on  it  [ki  kasar  ha-massa^ 
nie-histarea).  The  verb  sard^  therefore  means  to  stretch 
one's  self  at  will.  If  the  verb  kalat  is  its  opposite,  as  all 
seem  to  agree,  it  must  mean  to  be  '  cabin'd,  cribb'd,  confined  *, 
and  this  meaning  would  agree  exactly  with  the  ascertained 
function  of  the  Hr  miklat,  the  prison  city. 

While  we  are  on  this  branch  of  the  subject,  it  may  be  as 
well  to  say  a  word  on  the  subject  of  fleeing.  The  defendant 
always  flees  to  the  *^ir  miklat  The  verb  is  mis^  which 
undoubtedly  means  to  flee,  and  that  in  prehistoric  times, 
when  murderers  sought  altars  for  asylums,  they  fled  to 
them,  need  not  be  questioned.  The  point  is  that  the  verb 
litis  became  technical,  and  long  after  men  had  ceased  running 
to  the  cover  of  an  altar,  it  continued  to  be  used  for  the 
acts  men  did  under  later  law  to  stay  judgement  against 
themselves.  In  our  own  language,  when  a  man  loses  his 
case,  he  promptly  says  that  he  will  go  to  the  Supreme 
Court  at  once,  though  he  sits  still. 

We  may  therefore  admit  that  the  word  was  used  of  old 
when  men  sought  the  protection  of  the  inizbeah.  When, 
however,  the  separated  city  was  established,  it  was  inevitable 


78  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

that  a  certain  time  would  be  allowed  for  the  defendant  to 
reach  it.  He  was  not  to  run  a  race.  Undoubtedly  he  had 
to  take  his  appeal  without  delay.  The  modern  devices  of 
dilatory  motions  and  endless  appeals  on  trivial  and  ridicu- 
lous points,  which  bring  justice  into  contempt,  would  have 
met  with  no  tolerance.  Doubtless  the  time  set  for  appeal 
was  short.  Unless  taken  within  a  limited  number  of  days, 
it  was  not  a  supersedeas^  and  the  public  executioner  {gdel 
ha-dam)  was  in  law  bound  to  execute  the  death-warrant. 
During  the  few  days,  however,  the  defendant  was  perfectly 
safe.  Naturally  he  could  not  stay  at  home.  It  was  the 
part  of  common  sense  to  proceed  at  once  to  take  his  appeal. 
And  this  necessity  may  easily  be  described  by  a  word 
meaning  to  act  promptly,  to  hasten,  to  go  at  once.  And  this, 
we  believe,  is  all  that  the  verb  nus  means  in  this  connexion, 
though  it  many  times  in  other  connexions  means  to  flee, 
to  run  away. 

That  it  has  other  meanings  than  to  run  away  in  fear 
the  literature  shows : 

a  Kings  9.  3,  10.  Elisha  instructed  one  of  his  corps  of 
nebVini  to  anoint  Jehu  king  of  Israel,  and  having  done 
so,  to  depart  at  once,  without  delay  {we-7tastah  we-lo 
tehakkeh). 

There  are  others  in  which  the  word  means  to  turn  to  one 
for  help. 

To  whom  will  ye  turn  {tanusti)  for  help  ?  (Isa.  10.  3). 

If  those  to  whom  we  turned  for  help  (iiasmi)  have  fared 
thus,  how  shall  we  escape?  (Isa.  20.  6). 

There  are  still  other  instances  in  which  it  means  an 
impetuous  forward  movement,  the  very  reverse  of  flight 
from  a  pursuer : 

He  breaks  in  like  a  confined  river 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  79 

Which  the  spirit  of  JHVH  drives  before  it  {iiosesah  bo) 

(Isa.  59.  19). 
Ye  would  not,  but  ye  said  : 

No,  on  horses  will  we  fly  (iianiis) — 
Therefore  shall  ye  flee  {teniistin)  ; 
On  the  fleet  {kal)  will  we  ride — 
Therefore  shall  ye  have  fleet  pursuers  {yikkallu) 
(Isa.  30.  16). 

In  the  one  instance,  that  of  Joab,  where  it  means  seeking 
the  protection  of  the  altar,  there  was  really  no  pursuit  and 
no  running  away.  We  may  be  sure  that  Joab  walked 
calmly  to  the  o/ie I JHYH  (i  Kings  2.  28,  29). 

The  most  important  passage  in  which  the  word  is  used 
is  in  Prov.  (28.  ]  7).     The  Hebrew  text  is  : 

Adam  ^ashuk  be-dam  nafeshy  ^ ad-bor yanus  ;  al-yitmeku  bo. 

The  Authorized  Version  is  : 

A  man  that  doth  violence  to  the  blood  of  any  person 
shall  flee  to  the  pit ;  let  no  man  stay  him. 

The  translation  is  not  happy,  since  it  conveys  no  clear 
meaning.  Others  understand  it  to  mean  that  a  person 
guilty  of  murder  must  be  a  fugitive  till  death,  and  that  no 
man  should  aid  in  softening  his  hideous  fate. 

It  would  seem,  however,  that  these  renderings  rest  on 
the  supposition  that  the  bor  is  the  grave,  man's  last  resting- 
place.  We  shall  hereafter  take  occasion  to  show  that  bor  is 
a  prison,  and,  moreover,  that  Vr  miklat  disappeared  no  later 
than  850  B.C.,  and  that  thereafter  the  homicide  went  to  the 
bor.  When  we  consider  the  Proverb  in  question  in  that 
light,  it  becomes  a  sane,  popular  saying. 

When  the  '^are  miklat  were  replaced  by  prisons  in 
various  places,  and  the  accused  was  sent  thither  to  await  his 


80  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

trial,  or  the  result  of  his  appeal,  he  would,  without  doubt, 
have  liked  to  avoid  this  confinement. 

The  Proverb  is  a  warning  to  friends  that  helping  him 
will  hurt  themselves.  In  plain  English  :  Don't  interfere 
with  a  murderer's  going  to  prison.  The  ordinary  mode  of 
such  interference  would  be  by  surreptitiously  harbouring 
him.  Al yiUneku  bo  means,  therefore,  Do  not  receive  him. 
Isaiah  {^i?)'  15)  gives  us  a  fine  instance  of  the  use  of  this 
verb  tamak  in  a  sense  closely  related.  It  is  in  his  description 
of  the  just  man  : 

He  walketh  righteously  and  speaketh  uprightly. 

He  despiseth  the  gain  of  oppressions. 

He  closeth  his  hands  against  receiving  bribes  {ini- 
temok  ba-shohad). 

He  stoppeth  his  ears  against  blood- informers. 

He  shutteth  his  eyes  against  the  sight  of  evil. 
There  is  another  new  term  in  this  text.  The  defendant, 
who  is  to  be  interned  in  the  '^ir  miklat,  is  now  the  man  who 
has  VxW^Mi-shgagahddL  term  not  before  used  in  the  criminal 
law,  either  in  the  Exodus  or  the  Deuteronomy  text.  In 
the  former  it  was  ha-elohim  ijtnah  le-yado^  in  the  latter  bi-bli- 
da*at.  For  both  these  ideas  there  is  now  substituted  the 
general  statement  that  the  defendant  acted  in  error,  that 
there  was  no  intent  to  kill,  or,  as  the  versions  render  it,  he 
acted  unwittingly. 

One  may  note  in  this  a  certain  change  in  the  mental 
atmosphere  of  the  law  courts.  When  the  zikjte  ha-Hr  of 
the  various  cantons  were  to  administer  the  law,  the  act  of 
manslaughter  was  described  as  the  act  of  God,  having 
been  perpetrated  without  intent  by  man.  For  the  federal 
(Levitical)  courts,  however,  there  was  offence  in  this.  The 
unfortunate  slayer,  however  guiltless  of  murder,  was  never- 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  8l 

theless  a  criminal  of  a  certain  grade,  and  the  ascription  of 
the  act  to  God  was  repellent.  It  could  be  defended  only 
on  the  subtle  theory  that  Heaven  punished  in  some 
mysterious  way  men  who  think  or  secretly  do  wicked 
things  which  human  law  and  justice  are  too  feeble  and 
short-sighted  to  reach.  According  to  this  theory,  both  the 
manslayer  and  his  victim  "have  offended  Divine  justice,  the 
former  in  a  lesser,  the  latter  in  a  greater  degree.  The  crude 
fact  that  one  man  had  killed  another,  without  warrant  of 
law,  brushed  aside  this  subtle  theologizing,  and  the  act  was 
now  described  as  a  crime,  however  unintentional,  committed 
by  the  slayer. 

The  word  itself  does  not  import  freedom  from  blame. 
Its  root- word,  shagag,  has  an  equivalent,  shagah^  and 
though  this  means  to  err,  to  go  wrong,  it  frequently  re- 
proaches the  wanderer  that  it  is  his  own  wickedness  which 
led  him  astray. 

When  Saul  confesses  that  he  ought  not  to  have  sought 
David's  life,  he  says,  wa-eshgeh  (I  have  erred),  admitting 
that  he  had  done  the  wrongful  acts,  but  had  not  realized 
how  wicked  they  were  (i  Sam.  %6.  ii). 

Isaiah,  reproaching  Ephraim,  says  that  the  Kohen  and 
the  Nabi  have  erred  (wandered  from  the  right  path,  shagu) 
because  of  their  own  bad  habit  of  drunkenness,  thus  charging 
them  with  wickedness  as  the  cause  of  their  error  (Isa.  128.  7). 

In  Leviticus  the  word  is  often  used  to  denote  certain 
classes  of  doings  for  which  men  should  bring  sin-offerings. 
They  are  all  arrayed  under  the  head  of  bi-shgagah  (inadver- 
tence), and  may  be  committed  by  the  high  priest  (Lev.  4. 3), 
by  the  ^Edah  (4.  13),  by  the  Nasi  (4.  32),  and  by  any 
member  of  the  ''Am  ha- ares  (4.  27)  ;  by  any  person 
whatsoever  (5.  15). 

S.  G 


84  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

condition :  Swear  that  ye  will  not  yourselves  kill  me  {pen 
tifgeun  bi  attem)  (Judges  15.  12). 

When  Micah  reproached  the  Danites  for  their  audacious 
robbery,  they  bade  him  be  silent  or  he  and  his  would  die 
on  the  spot  {pen  yifge'^ti  bakem  anashim  mare  nefesh  zve- 
asaftah  nafsheka  we -nefesh  beteka)  (Judges  18.  25). 

When  Saul  ordered  his  soldiers  to  kill  the  priests  at  Nob, 
they  would  not  {zve-lo  abtc  lifgoa'  be-kohane  JH  VH)  (i  Sam. 
22.  17).  Doeg,  however,  did  so  on  the  spot  {zva-yifgd  hn 
ba-kohanim)  (i  Sam.  22.  18). 

When  the  Amalekite  reported  that  he  had  killed  Saul, 
David  called  one  of  his  men  and  ordered  him  to  kill  the 
self-confessed  assassin  of  JH  VH's  anointed  :  Gash,  pegd  bo, 
whereupon  the  soldier  slew  him  (2  Sam.  i.  15). 

And  the  words  are  used  to  describe  the  immediate  death 
of  Adonijah  at  the  hands  of  Benaiah  (i  Kings  2.  25). 

Solomon  also  ordered  Benaiah  to  execute  Joab  forth- 
with by  the  words:  Lek  pegd  bo  (i  Kings  2.  29,  31,  32,  34). 
And  the  like  happened  to  Shimei  i^a-yifgd  bo  wayamot) 
(i  Kings  2.  46). 

A  man  escapes  a  lion,  and  a  bear  kills  him  {nfgdo  ha-dob) 
(Amos  5.  19). 

This  first  group  of  four  verses  (Num.  '^^.  16-19)  i^ 
followed  by  a  sej)arate  £ip_up  jof  J:.wxiigo^l)^_  These  define 
murder.  The  important  elements  are  previous  enmity 
[sin  ah,  ebah)  or  lying  in  wait  {sediyah),  Si7iah  and  ebaJi 
are  synonymous.  In  Exodus  neither  word  is  used.  In 
Deuteronomy  there  is  shi aJi.  The  words  yazid  and 
be-onnah,  however,  which  are  used  in  the  Exodus  text, 
necessarily  imply  it.  The  former  indicates  an  insolent 
purpose  to  kill,  and  the  latter  deliberate  preparation  for 
carrying  this  purpose  into  effect. 


THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE  85 

Scdiyah  is  used  in  Exodus,  while  Deuteronomy,  without 
using  the  word,  employs  a  synonymous  term  {we-arab  lo). 

Thus  far  Exodus,  Deuteronomy,  and  Numbers  are  in 
substantial  agreement.  The  new  feature  in  the  Numbers 
law  is  the  detailed  description  of  the  physical  acts  by 
which  murder  may  be  committed.  These  are  probably  not 
intended  to  be  an  exhaustive  list,  but  they  certainly  go  far 
to  cover  the  field.  An  iron  weapon  is  presumed  to  be 
murderous  ('^^.  16) ;  a  stone  or  a  wooden  weapon  may 
be.  Whether  or  not  these  are  murderous  weapons  must 
be  determined  by  inspection,  and  by  investigation  into  the 
previous  relations  of  the  parties.  If  a  man  kill  another 
with  either  of  them,  the  law  requires  that  they  be  such 
wherewith  a  man  may  die,  meaning  thereby,  would  be 
likely  to  die,  before  their  use  raises  the  presumption  that 
murder  was  intended.  Wherever  this  presumption  arises, 
it  may  be  negatived  by  proof  of  the  fact  that  there  was  no 
previous  ebah  between  the  parties. 

Murder,  however,  may  be  committed  without  any 
weapon.  A  man  may  kill  another  with  his  hands.  In 
such  cases  ebah  or  sin' ah  must  be  clearly  proved  (^^.  21). 

Following  the  definition  of  murder  is  a  group  of  two 
verses  (22-3)  defining  manslaughter. 

The  first  (22)  is  a  mere  negative  of  20.  The  latter 
declares  it  to  be  murder  if  death  is  caused  by  thrusting  him 
iyehdafennu)  with  hatred  (sin'aJt)  or  hurling  at  him  {hishlik) 
or  lying  in  wait  {sediyah). 

The  former  declares  it  to  be  manslaughter  if  death  is 
caused  suddenly  {be-fetd)  by  thrusting  him  (Jiadafo\  without 
hatred  {ebah),  or  by  casting  upon  him  {hishlik)  anything 
without  lying  in  wait  {sediyah). 

And  to  this  is  added  verse  23,  which  also  reduces  the 


84  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

condition :  Swear  that  ye  will  not  yourselves  kill  me  {pe7i 
tifgeun  bi  atteni)  (Judges  15.  12). 

When  Micah  reproached  the  Danites  for  their  audacious 
robbery,  they  bade  him  be  silent  or  he  and  his  would  die 
on  the  spot  {pen  yifgeu  bakem  anashim  mare  7iefesh  ivc- 
asaftah  7tafsheka  we-nefesh  beteka)  (Judges  18.  25). 

When  Saul  ordered  his  soldiers  to  kill  the  priests  at  Nob, 
they  would  not  [ive-lo  abtc  lifgoa'  be-kohane  JHVH)  (i  Sam. 
22.  17).  Doeg,  however,  did  so  on  the  spot  {zva-ytfga  hit 
ba-kokanim)  (i  Sam.  22.  18). 

When  the  Amalekite  reported  that  he  had  killed  Saul, 
David  called  one  of  his  men  and  ordered  him  to  kill  the 
self-confessed  assassin  of  JH  VH's  anointed  :  Gash,  pegct  bo, 
whereupon  the  soldier  slew  him  (2  Sam.  i.  15). 

And  the  words  are  used  to  describe  the  immediate  death 
of  Adonijah  at  the  hands  of  Benaiah  (i  Kings  2.  25). 

Solomon  also  ordered  Benaiah  to  execute  Joab  forth- 
with by  the  words:  Lek pegd bo  (i  Kings  2.  29,  31,  32,  34). 
And  the  like  happened  to  Shimei  {wa-yifga  bo  wayamot) 
(i  Kings  2.  46). 

A  man  escapes  a  lion,  and  a  bear  kills  him  {ufgao  ha-dob) 
(Amos  5.  19). 

This  first  ^roup  pi  four  verses  (Num.  0^^.  16-19)  is 
followed  by  a  separate  group  of  two  (^o^.2^Xk-.,These  define 
murder.  The  important  elements  are  previous  enmit}' 
[sin'ahy  ebah)  or  lying  in  wait  (sediyah).  Sin  ah  and  ebaJi 
are  synonymous.  In  Exodus  neither  word  is  used.  In 
Deuteronomy  there  is  sin  aJi.  The  words  yazid  and 
be-ormaJi,  however,  which  are  used  in  the  Exodus  text, 
necessarily  imply  it.  The  former  indicates  an  insolent 
purpose  to  kill,  and  the  latter  deliberate  preparation  for 
carrying  this  purpose  into  effect. 


THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE  85 

Sediyah  is  used  in  Exodus,  while  Deuteronomy,  without 
using  the  word,  employs  a  synonymous  term  {we-arab  lo). 

Thus  far  Exodus,  Deuteronomy,  and  Numbers  are  in 
substantial  agreement.  The  new  feature  in  the  Numbers 
law  is  the  detailed  description  of  the  physical  acts  by 
which  murder  may  be  committed.  These  are  probably  not 
intended  to  be  an  exhaustive  list,  but  they  certainly  go  far 
to  cover  the  field.  An  iron  weapon  is  presumed  to  be 
murderous  ('^^.  16) ;  a  stone  or  a  wooden  weapon  may 
be.  Whether  or  not  these  are  murderous  weapons  must 
be  determined  by  inspection,  and  by  investigation  into  the 
previous  relations  of  the  parties.  If  a  man  kill  another 
with  either  of  them,  the  law  requires  that  they  be  such 
wherewith  a  man  may  die,  meaning  thereby,  would  be 
likely  to  die,  before  their  use  raises  the  presumption  that 
murder  was  intended.  Wherever  this  presumption  arises, 
it  may  be  negatived  by  proof  of  the  fact  that  there  was  no 
previous  ebah  between  the  parties. 

Murder,  however,  may  be  committed  without  any 
weapon.  A  man  may  kill  another  with  his  hands.  In 
such  cases  ebak  or  sin^ak  must  be  clearly  proved  {'^^,  21). 

Following  the  definition  of  murder  is  a  group  of  two 
verses  (22-3)  defining  manslaughter. 

The  first  (22)  is  a  mere  negative  of  20.  The  latter 
declares  it  to  be  murder  if  death  is  caused  by  thrusting  him 
{yehdafennu)  with  hatred  (sin^aJt)  or  hurling  at  him  {hishlik) 
or  lying  in  wait  {sediyaJi), 

The  former  declares  it  to  be  manslaughter  if  death  is 
caused  suddenly  {be-fetd)  by  thrusting  him  (Jiadafo\  without 
hatred  {ebah),  or  by  casting  upon  him  {hishlik)  anything 
without  lying  in  wait  {sediyah). 

And  to  this  is  added  verse  23,  which  also  reduces  the 


86  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

offence  to  manslaughter,  if  he  cast  upon  him  {ivayappel) 
a  murderous  stone,  seeing  him  not,  not  being  his  enemy 
(oyeb)^  nor  seeking  to  harm  him.  The  same  principle  would 
doubtless  apply  if,  instead  of  a  murderous  stone,  it  was 
a  murderous  wooden  instrument. 

It  will  be  noticed  that  the  new  term,  be-feta\  is  now 
introduced.  It  means  an  event  that  not  only  was  not 
foreseen,  but  that  happened  suddenly,  like  lightning  from 
a  clear  sky.  The  expression  seems  apt  to  designate  one  of 
the  many  quarrels  which  arise  between  high-tempered  men 
who  may  not  even  know  each  other,  but  who  are  suddenly 
brought  into  contact,  under  circumstances  which  induce  one 
or  the  other  to  believe  that  he  has  been  offended.  The 
idea  thus  conveyed  is  the  same  as  the  ha-elohim  innah 
leyado  of  Exodus,  and  the  bi-bli-ddat  of  Deuteronomy. 

The  last  group,  four  verses  (24-37),  are  a  pendant  to 
verse  12,  which  provides  for  trial  by  the  ^Edah. 

Verse  34  affirms  this,  by  declaring  that  the  'Edah  shall 
judge  between  the  slayer  and  the  gdel  ka-dam^  according 
to  the  mishpatim  which  we  have  just  considered.  The 
term  gdel  ha-dam  is  here  used  as  representing  what  we 
would  call  the  commonwealth,  the  public  in  its  role  of  the 
prosecutor  of  crime. 

Verse  25  provides  that  if  the  commonwealth's  case  is 
not  made  out,  the  ^Edah  remands  the  manslayer  to  the 
Hr  miklat^  there  to  abide  until  the  death  of  the  Kohen 
ha-gadol. 

Verses  26  and  27  provide  against  the  manslayer's  escape 
from  the  */r  miklat  before  the  end  of  his  term. 

Incidentally,  they  reveal  a  feature  of  the  negotiations 
between  the  cantonal  authorities  and  the  federal  govern- 
ment.    When  the  separated  cities  were  found  inadequate 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  87 

for  the  purposes  of  the  latter,  and  it  had  succeeded  in 
procuring  from  the  cantons  a  cession  of  their  jurisdiction 
over  certain  cities  in  the  various  districts  of  the  country,  the 
condition  was  agreed  upon  that  a  death-warrant  issued  by 
the  zikne  ha-ir  should  continue  to  be  valid  everywhere  in 
the  land  except  in  places  under  exclusive  federal  jurisdiction. 
This  is  the  meaning  of  verses  16  and  ^17.  So  soon  as  the 
manslayer  broke  bounds,  he  was  at  any  point  in  the  country 
subject  to  the  enforcement  of  the  original  death-warrant, 
which  was  merely  suspended  while  he  was  on  federal  terri- 
tory, but  was  not  annulled  or  made  void  until  he  had  served 
his  full  term  in  the  Hr  miklat.  When  that  had  been  done, 
the  warrant  was  dead. 

A  word  is  needed  on  the  evidence  law  in  this  text.  It 
differs  from  the  Deuteronomy  law  in  several  respects.  The 
latter,  as  we  have  seen,  is  general  and  applies  to  the  hearing 
of  every  crime  and  misdemeanour.  It  also  affirmatively 
requires  two  witnesses  or  three  witnesses  (19.  15). 

Besides  this  general  law,  however,  Deuteronomy  has 
another  version  which  limits  it  to  capital  cases  (17.  6). 

The  Numbers  statute  regulates  murder  trials  only 
(?iS'  30)*  It  varies  from  the  Deuteronomy  law  in  that  while 
it  prohibits  judicial  action  on  the  testimony  of  one  witness, 
it  prescribes  no  specific  number  of  witnesses  as  necessary. 
It  merely  uses  the  plural,  witnesses. 

The  probability  is  that  the  general  law  as  stated  in 
Deut.  19,  15  remained  unmodified,  except  in  so  far  as  to 
permit  trial  and  judgement  on  the  testimony  of  two 
witnesses  without  more.  The  alternative  number  '  three 
witnesses',  used  in  Deuteronomy,  is  difficult  to  explain. 
The  thought  in  it  seems  to  be  that  the  denunciant,  or  the 
plaintiff,  must  be  corroborated  by  two  disinterested  wit- 


88  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

nesses.  By  the  time  of  the  Numbers  statute  he  had  probably 
been  disqualified  as  a  witness.     Hence  the  change. 

The  Joshua  text  (20.  2-9)  is,  as  has  been  said,  a  mere 
pendant  of  the  Numbers  text.  It  has  the  peculiarity  that 
the  Deuteronomic  term  bi-bli-ddat  is  used  in  verse  3, 
apparently  as  an  explanatory  note  to  the  word  bi-shgagah^ 
which  it  follows,  and  in  verse  5  is  used  without  bi-shgagah. 
These,  however,  are  matters  of  no  moment. 

The  value  of  the  text  lies  in  its  supplying  details 
necessary  for  the  completion  of  the  Numbers  text. 

The  latter  tells  us  that  the  roseah  shall  go  to  the  *2> 
miklat,  and  that  from  it  he  shall  be  taken  to  the  seat  of 
the  'Edahy  there  to  be  tried.  The  Joshua  text  describes 
the  proceedings  when  he  reaches  the  Hr  miklat.  His 
admission  is  a  question  to  be  decided  by  the  zekenim^  who, 
as  the  city  is  Levitical  and  federal,  are  governed  by  the 
federal  law  alone.  As  he  states  his  own  case,  he  would  in 
most  cases  declare  such  facts  as  would  establish  shegagah. 
If  he  failed  to  do  so,  but  on  his  own  showing  was  a  mere 
murderer,  they  would  not  receive  him,  and  he  would  be 
delivered  to  the  go  el  ha-dam  for  execution,  but  if  he  were 
once  admitted,  the  application  of  the  go  el  ha-dain  for  his 
surrender  would  have  to  be  refused,  and  he  would  have  to 
be  tried  by  the  '^Edah.  To  the  "^Edah,  whose  seat  was 
probably  in  Jerusalem,  he  would  be  taken  by  the  federal 
authorities.  At  that  trial  his  'ir  would  be  represented  by 
its  gdel  ha-dam^  and  perhaps  by  some  of  its  zekenim.  If 
the  conviction  of  his  Hr  was  affirmed,  he  would  be  executed 
forthwith.  If,  on  the  other  hand,  the  ^Edah  ruled  that  it 
was  manslaughter,  he  would  be  remanded  to  the  Hr  miklat 
to  serve  his  term. 

We  have  still  the  Leviticus  texts  to  examine.     They 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  89 

are  silent  as  to  the  distinction  between  murder  and  man- 
slaughter, and  hence  fail  to  indicate  that  the  latter  offence, 
if  it  existed  in  the  eyes  of  the  law,  was  in  any  degree 
punishable. 

They  have,  however,  one  prominent  feature  which 
stamps  them  unmistakably  as  federal  law.  The  makkeh- 
ish  must  be  put  to  death  (inot  yiimat)  (24.  17,  21). 

It  behoves  us,  therefore,  to  ascertain  the  probable  reason 
for  the  curtness  of  the  passages. 

They  form  part  of  a  little  Torah  of  twenty-four  verses 
(Lev.  24.  10-23).  It  begins  by  a  rather  full  report  of  the 
case  tried  by  oracle,  wherein  the  son  of  a  Hebrew  woman 
by  an  Egyptian  man  was  sentenced  to  death  for  blasphem- 
ing the  oracle  (cursing  the  Shem),  and  shows  that  the 
principle  established  by  that  case  was  that  the  Hebrew  law 
held  persons  not  pure  Hebrews  {gerim)  answerable  to  the 
law  as  fully  as  if  they  were  pure  Hebrews  (ezrah). 

To  this,  which  serves  as  the  text,  are  added  brief  notes  : 

1st.  That  a  makkeh-ish  must  undergo  the  death  penalty. 

2nd.  That  a  makkeh-behemah  must  compensate  the 
injured  party,  nefesh  tahat  nefesh  (beast  for  beast). 

3rd.  That  a  maimer  shall  be  reciprocally  maimed  (breach 
(sheber)  for  breach,  eye  for  eye,  tooth  for  tooth). 

4th.  That  mishpat  (law)  is  single — the  same  for  ger  as 
for  ezrah. 

The  origin  of  this  interesting  and  curious  document  may 
be  conjectured  to  be  somewhat  as  follows.  The  projected 
law  reform,  we  may  be  sure,  was  not  the  work  of  mere 
theorists  or  idealists.  It  was  a  practical  measure  to  unify 
and  solidify  the  kingdom.  It  demanded  the  extinguishment 
of  local  customs  which  were  hostile  to  the  general  principles 
of  the  federal  law.     It  had,  however,  other  ends  to  attain. 


go  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

By  this  time  the  Hebrews  were  in  unquestioned  supremacy 
in  the  cantons,  and  the  g^rini^  though  everywhere  con- 
siderable in  numbers,  were  relatively  powerless,  as  being 
hopelessly  in  the  minority.  They  would  naturally  protest 
to  the  federal  government  that  they  were  not  fairly  treated. 

In  the  previous  lecture  it  was  intimated  that  the  first 
step  in  the  law  reform  was  the  limitation  of  trial  and 
sanctuary  to  the  cantonal  capital,  and  that  to  assure  the 
execution  of  the  law,  untainted  by  Canaanite  custom, 
Kohanim  or  Levites  were  sent  as  assessors  to  the  zikne 
ha-ir  in  each  of  the  said  cities.  On  this  point  we  have 
the  precious  zikne  ha-''ir  document  (Deut.  21.  1-9),  which 
happily,  though  not  too  relevantly,  interjects  into  the  pro- 
ceedings of  the  zikne  ha-ir  this  note :  And  the  Kohanim 
the  bne-Levi  shall  come  near;  for  them  JHVH  thy  God 
hath  chosen  to  minister  unto  Him,  and  to  bless  in  the  name 
of  JHVH,  and  according  to  their  pronouncement  (^alpihem) 
shall  be  decided  every  rib  (controversy)  and  every  nega 
(assault)  (Deut.  11.  5). 

If  now  we  imagine  one  of  these  Kohanim  appointed  by 
the  federal  authorities  to  go  to  one  of  these  cantons  as 
assessor,  he  would  naturally  be  charged  to  see  to  it  that  the 
gerim  obtained  full  justice.  The  central  authorities  would 
give  him  a  sefer^  containing  the  great  doctrine  of  the 
equality  of  all  before  the  law,  and  the  fact  that  the  founda- 
tion case  bore  rather  hard  on  the  ger  was  an  additional 
argument  to  show  that  when  the  case  was  the  other  way, 
it  was  just  that  the^^;'  should  receive  the  advantage.  The 
notes  to  this  original  sefer  may  fairly  be  presumed  to  be 
the  memorandum  made  by  one  of  these  Kohanim  of  three 
classes  of  cases,  in  which  he  succeeded  in  having  the  doctrine 
fairly  carried  out. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  91 

This  suggested  explanation  of  the  form  of  the  Leviticus 
text  involves  the  conclusion  that  it  w^as  intended,  primarily, 
to  inculcate  the  doctrine  and  policy  of  the  state,  that  the 
ger  was  equal  in  law  to  the  ezrah^  whether  such  equality 
would  operate  to  his  advantage,  or  to  his  disadvantage. 
If  such  were  the  true  origin  and  intent  of  this  Leviticus 
Torah,  it  would  be  idle  to  seek  in  it  any  elaboration  of 
other  doctrines  or  principles  than  the  one  it  was  specially 
intended  to  illustrate.  For  the  purposes  of  our  present 
investigation,  it  may  therefore  be  dismissed  without  further 
comment. 

This  review  of  the  texts  would  lack  completeness  if  we 
failed  to  consider  the  only  text,  other  than  the  legal  ones, 
which  has  the  term  go^el  ha-dam.  It  is  the  fourteenth 
chapter  (vv.  1-24)  of  2  Samuel. 

The  length  of  this  lecture,  however,  forbids  further 
expansion,  and  the  matter  may  well  go  over  to  the  next. 


IV 


In  all  the  Biblical  literature  there  is  no  mention  that 
a  gdel  ever  killed  anybody,  nor,  indeed,  is  the  term  gdel 
ha-dam  used  in  any  other  than  the  legal  passages  cited, 
and  the  historical  notes  relating  thereto,  save  in  one  instance. 

Absalom,  having  murdered  his  brother,  Amnon,  fled 
from  the  royal  court  to  his  maternal  grandfather.  King 
Talmai  of  Geshur,  with  whom  he  stayed  for  three  years. 

David's  general-in-chief,  Joab,  was  a  partisan  of  Absalom, 
and  favoured  him  for  the  succession  to  the  throne.  Exile 
was  fatal  to  such  pretensions,  and  Joab  schemed  for  his 
recall. 

Joab  was  a  masterful  character,  skilled  in  diplomacy 
and  great  in  war,  who,  in  general,  accomplished  what  he  set 
out  to  do.  For  good  reason  he  did  not  himself  ask  David 
to  pardon  Absalom,  but  contrived  to  put  the  matter  to 
David  through  the  agency  of  a  wise  woman  {ishah  hakamah). 

Exactly  what  an  ishah  hakamah  was  is  not  clear.  There 
are  but  two  of  them  in  the  Bible,  and  both  have  dealings 
with  Joab.  One  is  tempted  to  opine  that  there  were  legends 
current  in  Israel  concerning  such  women,  and  that  the  story 
we  are  now  considering  was  one  of  the  series.  The  wise 
woman  of  Abel-beth-maacah  (2  Sam.  20. 18)  treated  with 
Joab,  caused  him  to  raise  the  siege,  and  saved  the  city. 
Her  wit  persuaded  Joab,  her  wisdom  controlled  her  towns- 

92 


THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE  93 

men.  And  now  Joab  entrusted  a  most  delicate  diplomatic 
negotiation  to  another  ishah  hakamah^  her  of  Tekoa.  Abel- 
beth-maacah  was  in  the  north  ;  Tekoa  was  in  the  south. 

The  story  is  well  told.  Joab  knew  that  David  longed 
for  Absalom,  but  would  not  recall  him  because  he  deserved 
the  punishment  he  was  undergoing.  The  point  was  to 
persuade  the  king  that  the  time  had  come  to  pardon  the 
delinquent. 

Joab  carefully  instructed  his  wise  woman.  She  was  to 
be  a  mourning  widow,  one  of  whose  sons  had  murdered  the 
other.  Justice  demanded  that  the  murderer  should  be 
executed,  and  his  only  son  likewise.  If  this  was  done,  her 
beloved  husband's  name  and  family  would  be  totally  extinct. 
She  therefore  implored  him  to  stay  the  hand  of  justice  and 
in  his  mercy  grant  a  pardon.  Her  tears  and  prayers  pre- 
vailed, and  the  king  swore  the  great  oath  {hai-jfHVH)t\\2it 
her  son  would  be  saved. 

Now  was  the  moment  to  remind  David  that  he  who 
would  pardon  the  criminal  of  another  family  should  do  the 
same  by  his  own,  especially  in  view  of  the  fact  that  the 
people  desired  it. 

The  king  at  once  taxed  her  with  being  Joab's  envoy, 
and  she  owned  that  she  was.  Her  work,  however,  was  well 
done.  She  had  persuaded  the  king  to  yield  to  his  longing. 
Joab  was  sent  for  and  given  leave  to  bring  Absalom  home. 
It  is  in  the  course  of  the  woman's  fictitious  story  that 
she  uses  the  loxm  go  el  ha-dam.  The  people  who  demanded 
justice  against  the  murderer  are  called  kol-ha-inishpahah,  the 
ordinary  meaning  of  which  would  be  her  husband's  brothers 
and  their  descendants.  The  language  ascribed  to  them  is 
peculiar.  They  all  speak  together,  and  they  do  not  address 
themselves  to  the  zikite  ha-'ir  or  to  any  other  authority, 


94  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

but  to  a  lone  widow  who  is  assumed  to  have  the  guardian- 
ship of  her  son,  who  is  himself  the  father  of  a  boy.  Their 
expressed  desire  is  to  kill  the  murderer  and  his  son 
(unmitehii  be-nefesh  ahiiu  asher  harag  we-nashmidah  gam 
et  ha-yoresh)  (2  Sam.  14.  7).  So  runs  the  story.  The  king 
bids  her  go  home,  that  she  shall  not  be  troubled,  and  then 
she  goes  on  to  pray  that  the  go'el  ha-dam  may  no  longer 
destroy,  that  they  may  not  destroy  her  son  (14.  11). 

The  whole  story  is  obscure,  though  the  account  may 
omit  circumstances  which  would  have  made  it  more  plau- 
sible. The  woman  may,  for  instance,  have  represented 
herself  as  coming  from  a  remote  place  in  the  northern 
mountains,  where  lawlessness  prevailed,  and  where  the 
whole  royal  power  was  needed  to  enforce  law.  At  all 
events,  the  touch  which  says  that  the  community  in  which 
she  lives  is  unable  to  act  without  her  help  rather  strains 
belief.  Moreover,  they  do  not  speak  of  any  one  executing 
the  culprit  but  themselves,  in  the  plural.  It  is  she  who 
bethinks  herself  of  the  gdel  ha-dam^  and  asks  that  he  be 
restrained,  in  order  that  they  might  not  kill  her  son. 

If  her  application  is,  as  it  appears  to  be,  for  pardon, 
she  says  nothing  that  is  inconsistent  with  the  theory  that 
she  fears  legal  prosecution  and  conviction  and  the  conse- 
quent death  of  her  son  at  the  hands  of  the  go  el  ha-dam^ 
the  federal  executioner.  On  this  view  her  conduct  is 
natural,  since  she  asks  the  king  to  stay  the  hand  of  his 
own  officer. 

Above  all,  it  is  necessary  to  remember  that  the  whole 
is  a  piece  of  Joab's  biography,  intended  to  exalt  his  diplo- 
matic wisdom.  Biographies  are  often  romantic,  and  in  the 
case  of  popular  heroes  are  from  time  to  time  retouched. 
When  this  story  took  its  present  shape  may  not  be  easy  to 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  95 

determine.  In  any  event,  it  can  scarcely  be  looked  on  as 
authority  for  law  in  the  time  of  David.  If  we  had  the 
biography  of  Joab  from  which  this  story  was  probably 
extracted,  the  difficulties  of  interpretation  might  readily 
disappear.  It  is  significant,  however,  that  ih^  go'el  ha-dam 
is  never  spoken  of  in  the  literature  after  Joab.  He  was 
also  the  last  who  took  refuge  by  the  Altar  in  Jerusalem,  and 
his  death  in  that  holy  place  marked  the  downfall  of  the 
whole  idea  of  sanctuary. 

The  general  conclusions  which  we  have  reached  con- 
cerning the  go' el  ha-dam  and  the  '/r  miklat,  as  stages  in  an 
extensive  law  reform,  demand  that  the  results  of  this  move- 
ment be  ascertained. 

Its  end  was  the  establishment  of  a  federal  court  in 
every  canton  of  the  land,  each  of  which  had  executive 
officers  to  execute  its  judgements.  'Judges  {shofetim)  and 
officers  [shoterim)  appoint  in  every  one  of  thy  cities  {she- 
'arekd),  who  shall  judge  the  people  with  just  judgement 
(mishpat-sedekY  (Deut.  i6.  i8). 

It  was  Jehoshaphat  (873-849  B.C.)  who,  after  a  hundred 
years,  gave  to  the  grandiose  conceptions  of  Solomon  the 
final  touch  which  assured  their  triumph. 

The  story  is  told  in  2  Chronicles. 

He  began  his  reign  by  placing  garrisons  in  all  the  ^arim 
of  Judah,  and  in  the  ^arim  of  Ephraim  that  had  been  taken 
by  his  father  Asa  (17.  2).  In  the  third  year  he  sent  his 
sarim  (princes)  into  every  corner  of  the  land  to  instruct 
in  the  ^are  Yektidah  (17.  7),  and  with  them  he  sent  legal 
experts  (Levites  and  kohanim)  to  re- enforce  their  statesman- 
like arguments  with  the  statement  of  the  principles  and 
practices  of  the  Hebrew  law,  and  they  taught  in  Judah, 
carrying  with  them  the  sefer  tor  at  JHVH,  and  went  about 


96  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

through    all   the   "^are    Yehtidah   and    taught    the    people 

(17-8,9). 

When  the  ground  was  thus  carefully  prepared  and  there 
were  sufficient  forces  everywhere  to  assure  obedience,  he 
took  the  final  step.  He  set  judges  (shofetini)  in  the  land, 
in  all  the  ""ariin  of  Judah,  city  by  city  (19.  5). 

Moreover,  he  established  a  supreme  court  in  Jerusalem, 
composed  of  Levites,  kohanim^  and  eminent  chiefs  to 
administer  mishpat  JHVH,  and  the  ordinary  rib  (suits) 
(19.  8). 

For  cases  concerning  the  king's  revenues  or  estates,  the 
court  had  a  special  president  (Nagid),  Zebadiah  ben  Ishmael, 
who  was  doubtless  the  king's  confidential  minister. 

The  jurisdiction  of  the  court  was  appellate  only.  There 
is  no  hint  of  original  jurisdiction,  even  in  matters  royal. 
The  wording  is  unmistakable.  Every  rib  (cause)  which 
will  come  up  to  you  from  your  brethren  in  the  several  "^arim 
ye  shall  instruct  them  so  that  they  trespass  not  against 
JHVH  and  so  wrath  come  upon  yon.  And  the  causes  are 
thus  classed :  ben  dam  le-dam  (homicide  cases,  whether 
murder  or  manslaughter) ;  beti  torah  le-miswah^  le-htikkim 
ti-le-mishpatim  (this  comprehends  all  other  classes  of  cases). 

The  establishment  of  this  appellate  tribunal  at  Jerusalem 
is  described  at  large  in  Deuteronomy.  The  charge,  how- 
ever, which  in  Chronicles  is  addressed  to  the  judges  of  the 
supreme  court,  is  here  directed  to  the  judges  of  the  courts  of 
first  instance  in  the  several  ''arim. 

If  there  arises  a  case  {dabar  la-mishpat)  of  murder  or 
manslaughter  {be^i  dam  le-dam)  or  any  other  cause  {ben  din 
le-din  uben  nega  la-nega\  dibre  ribot),  or  any  law,  or  an 
assault,  any  controversy  in  thy  cities  {bishe'areka)^  arise 
and  go  up  to  the  makom  which  JHVH  thy  God  will  choose 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  97 

for  thee  (Jerusalem).  Go  to  the  Kohanim^  the  Levites, 
and  the  shofet  then  in  office,  and  inquire,  and  they  shall 
instruct  thee  as  to  the  law.  According  to  their  pronounce- 
ment thou  shalt  act,  being  heedful  to  obey  exactly.  Ac- 
cording to  the  tor  ah  which  they  shall  teach  thee,  and 
according  to  the  mishpat  which  they  shall  tell  thee,  must 
thou  act,  swerving  therefrom  neither  to  the  right  nor  the 
left.  And  he  that  will  act  contumaciously  {be-zadon),  not 
heeding  the  Koheji  standing  to  minister  there  before  JHVH 
thy  God,  or  the  shofet,  that  man  shall  die  that  evil  may  be 
removed  from  Israel.  And  the  whole  people  shall  hear 
and  fear,  that  there  be  no  more  contumacy  (Deut.  17.  8-13). 

Great  care  was  exercised  to  give  specific  instructions 
for  the  guidance  of  these  judges  in  the  ^arim.  They  must 
have  constituted  an  elaborate  little  code,  fragments  of 
which  are  still  preserved. 

One  of  the  most  interesting  is  in  Exodus. 

Do  not  heed  a  popular  cry  to  convict  nor  decide  a 
cause,  either  to  please  the  powerful  {rabbim),  or  to  favour 
the  poor  {dal,  ebyon)  (Exod.  23.  2,  3,  6). 

Abhor  a  false  cause,  nor  condemn  to  death  the  naki 
(once  acquitted),  or  the  saddik  (one  that  is  innocent).  The 
guilty  cannot  escape  the  justice  of  heaven  (Exod.  23.  7). 

Take  no  gift  (shohad).  It  blindeth  the  wise  and 
perverteth  the  cause  of  the  innocent  {dibi'c  saddikim) 
(Exod.  23.  8). 

Do  not  oppress  a  ger ;  ye  know  a  gers  life  ;  ye  were 
yourselves  gerim  in  Egypt  (Exod.  23.  9). 

Here  is  another  from  Leviticus  : 

Do  no  unrighteousness  in  mishpat  \  respect  not  the  per- 
son of  the  poor  {dal)^  nor  honour  the  person  of  the  mighty 
{gadol).     Judge  in  righteousness  {be-sedek)  (Lev.  19.  15). 
S.  H 


98  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

Be  not  a  prosecutor  (rakil),  nor  be  thou  eager  for  thy 
neighbour's  blood  (19.  16). 

Hate  not  thy  brother  in  thy  heart,  nor  wantonly  rebuke 
him,  nor  fasten  guilt  upon  him  (19.  17). 

Nurse  no  vengeance  or  grudge,  but  love  thy  neighbour 
as  thyself  (19.  11).  Do  no  unrighteousness  in  mishpat  with 
respect  to  middah  (measurement),  to  mishkal  (weight),  or  to 
mesurah  (content)  (19.  '^^, 

Deuteronomy  has  several. 

Moses  says :  I  charged  your  shofetivi  at  that  time : 
Hear  both  sides  {shamoa  ben  ahekem)  and  judge  righteously 
(sedek)  between  them,  ezrak  orger  (Israelite  or  non-Israelite) 
(Deut.  I.  16). 

Do  not  respect  persons  in  mis/ipat,  hear  the  little  as 
well  as  the  great,  fear  not  the  face  of  man,  mishpat  is  of 
God.  The  cause  that  is  too  hard  for  you,  bring  it  to  me  ; 
I  will  hear  it  (Deut.  i.  17). 

JHVH  regard eth  not  persons  nor  taketh  gifts  (shohad) ; 
He  deals  mishpat  for  the  fatherless  and  the  widow,  He  loves 
the^^r  (Deut.  10.  17,  18). 

Shofetim  and  shoterim  appoint  thou  in  all  thy  cities 
(shearekd)  which  J  H VH  thy  God  giveth  thee  to  thy  tribes, 
who  shall  judge  the  people  with  just  judgement  [mishpat- 
sedek).  Thou  shalt  not  wrest  judgement  {mishpat),  nor 
take  a  gift  {shohad)^  for  shohad  blindeth  the  eyes  of  the 
wise  and  perverteth  the  cause  of  the  innocent  (dibre  saddi- 
kim).     Justice,  justice  shalt  thou  follow  (Deut.  16.  1^-20). 

The  fathers  shall  not  be  put  to  death  for  the  children, 
neither  shall  the  children  be  put  to  death  for  the  fathers. 
A  man  shall  be  put  to  death  for  his  own  crime  {be-hefo). 
Pervert  not  the  mishpat  of  the  ger  nor  of  the  fatherless 
(Deut.  24.  16,17). 


THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE  99 

If  men  have  a  controversy  (rib)  and  bring  it  for  judge- 
ment, the  judges  shall  acquit  the  innocent  {saddik)  and 
convict  the  guilty  {i^ashci)  (Deut.  25.  i). 

Artir  he  that  taketh  shohad  to  condemn  to  death  one 
who  was  once  acquitted  {naki)  (Deut.  27.  2.5  ;  cf.  Exod.  23.  7). 

That  the  system  so  established  was  complete  is  mani- 
fest. The  details  in  Lev.  19.  '^^  show  that  the  judges  were 
custodians  of  standards  of  weights  and  measures,  and  this 
is  an  index  of  the  care  exercised  to  judge  righteously. 

The  penalty  of  death  for  one  kind  of  bribery  appears 
to  be  fixed  in  Deut.  2^7.  25,  and  the  deliberate  disregard  of 
the  decision  of  the  supreme  court  was  declared  a  capital 
offence  in  Deut.  17.  12. 

With  the  establishment  of  this  system  the  whole 
machinery  of  sanctuary,  of  separated  city,  of  ^are  miklat^ 
of  go  el  ha-dam,  as  well  as  the  judicial  functions  of  the 
zikne  ha-Hvj  of  the  several  cities  and  of  the  '^Edah^  were 
swept  away,  and  kofer  fell  into  oblivion. 

The  great  question  of  murder  or  manslaughter  {ben  dam 
le-dam)  was  tried  in  every  Hr  according  to  the  principles 
of  the  Hebrew  law,  as  authoritatively  expounded  by  the 
supreme  court  at  Jerusalem.  All  vestiges  of  Canaanite  law 
disappeared,  leaving  only  a  few  literary  survivals  buried  in 
this  or  that  phrase  or  odd  sentence  of  the  legal  codes. 

When  Jehoshaphat  died  in  849  B.C.,  he  well  deserved 
as  an  inscription  on  his  monument  the  words  of  the 
Chronicler  (3  Chron.  19.  4)  : 

'  He  went  out  among  the  people  from  Beersheba  to 
Mount  Ephraim  and  brought  them  back  to  JHVH,  the  God 
of  their  fathers.' 

It  is  a  strange  trait  of  universal  history  that  men  who 
accomplish  beneficial  changes  in  the  law  of  their  country 

H  % 


lOO  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

remain  obscure,  while  the  names  of  warriors,  who  often 
afflict  it  with  miseries,  go  sounding  through  the  ages.  It 
happens  that  the  men  who  carried  through  Jehoshaphat's 
plans  are  known.  The  Chronicler  has  preserved  their 
names.  No  one  reads  them.  In  this  legal  essay,  however, 
they  deserve  to  be  repeated. 

The  princes  {sarini)  who  led  the  movement  were :  Ben- 
hail,  Obadiah,  Zechariah,  Nethanel,  and  Micaiah.  The 
Levites  were  Shemaiah,  Nethaniah,  Zebadiah,  Asahel, 
Shemiramoth,  Jehonathan,  Adonijah,  Tobijah,  and  Tob- 
adonijah ;  and  the  priests  (kohanini)  Elishama  and  Jehoram 
(2  Chron.  17.  7,  8). 

All  honour  to  this  great  company  of  statesmen  and 
jurists,  benefactors  of  mankind,  and  to  their  master, 
Jehoshaphat ! 

It  is  pleasant  to  fancy  that  some  such  sentiment  in- 
spired the  prophet  Joel  to  name  the  place  where,  on  the 
great  day,  the  nations  were  to  be  judged,  the  Valley  of 
Jehoshaphat  (Joel  4.  2,  la). 

The  firm  establishment  of  the  Hebrew  law  in  Judah 
must  have  influenced  the  northern  kingdom.  Jehoshaphat 
and  the  kings  of  Israel  were  in  close  alliance,  Jehoshaphat's 
son  and  successor  married  King  Ahab's  daughter,  and  the 
two  kingdoms  marched  peacefully  side  by  side.  Neverthe- 
less, the  movement  for  Torahy  law,  was  slower  in  the  north 
than  in  the  south.  In  our  second  lecture  reference  was 
made  to  the  hostile  criticism  on  this  subject  uttered 
a  hundred  years  later  by  the  prophet  Amos. 

The  success  of  these  great  reform  measures  had  incidental 
consequences,  in  modifying  methods  of  legal  procedure, 
and  in  rooting  out  some  legal  principles  which  revolted  the 
Hebrew  conception  of  justice. 


THE    ANCIENT   HEBREW    LAW    OF    HOMICIDE  lOI 

In  Canaanite  law  the  presence  of  the  accused  was  not 
necessary.  The  zikne  ha-ir  could  try  and  adjudge  his  case 
in  his  absence.  Moreover,  at  such  trial  the  accuser  was 
the  all-sufficient  witness.  Then,  too,  a  man  acquitted  might 
be  tried  again.     Twice  in  jeopardy  was  no  defence. 

These  features  of  Canaanite  law  are  inferred  from  the 
energetic  opposition  to  them  in  the  Torah.  That  the  old 
law  permitted  the  trial  of  a  person  in  his  absence,  appears 
from  the  demand  of  the  anshe  ha-Hr  of  Ophrah,  that  Gideon's 
father  should  surrender  his  son  for  execution,  the  latter 
having  been  convicted  of  a  capital  offence.  Had  he  been 
present,  participating  in  the  trial,  the  demand  would  have 
been  superfluous  (Judges  6.  30). 

And  there  is  another  similar  case  under  the  law  of  the 
zikne  ha-'^ir.  A  woman  charged  with  gross  fraud  on  the 
marital  relation  may  be  tried  in  her  absence  and  brought 
out  for  execution  (Deut.  22.  21). 

In  the  Hebrew  law  a  trial  in  the  absence  of  the  defendant 
was  inconceivable.  Even  in  the  days  of  oracle  trials,  which 
were  not  trials  in  the  legal  sense,  there  being  no  issue 
between  parties,  the  accused  were  always  present.  The 
reported  cases  attest  this  fact  (Achan  s  case,  Joshua  7.  14- 
18  ;  Jonathan's  case,  i  Sam.  14.  38-42). 

When  trials  were  instituted,  the  rule  was  still  more 
strongly  insisted  on  (Deut.  i.  16,  17). 

That  one  witness  was  all  that  the  Canaanite  law  required, 
and  that  a  man  might  thus  be  at  the  mercy  of  an  enemy, 
is  readily  inferred  from  the  almost  passionate  opposition  of 
the  Hebrew  code  to  that  practice. 

'  The  murderer  shall  be  put  to  death  by  the  mouth  of 
witnesses.  One  witness  shall  not  testify  against  any  person 
to  cause  him  to  die'  (Num.  '^^.  30). 


I02  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

'  At  the  mouth  of  two  witnesses,  or  three  witnesses,  shall 
he  that  is  worthy  of  death  be  put  to  death  ;  at  the  mouth 
of  one  witness  he  shall  not  be  put  to  death.  The  hands 
of  the  witnesses  shall  be  first  upon  him  to  put  him  to 
death,  and  afterward  the  hand  of  kol  ha-'^ani '  (Deut.  17. 

6,7). 

*  One  witness  shall  not  rise  up  against  a  man  for  any 
crime  or  misdemeanour  charged  against  him  ;  at  the  mouth 
of  two  witnesses,  or  at  the  mouth  of  three  witnesses,  shall 
the  matter  be  established '  (Deut.  19.  15). 

In  the  Northern  Kingdom,  which  was  less  zealous  than 
Judah  in  protecting  the  Hebrew  law  against  Canaanite 
infusion,  the  rule  of  two  witnesses  was  firmly  established 
in  the  time  of  Ahab,  the  friend  and  contemporary  of 
Jehoshaphat  (i  Kings  iZi.  10,  18). 

So  rooted  was  the  idea  of  two  witnesses  in  the  Hebrew 
mind  that  when  JHVH  instructed  the  prophet  Isaiah  to 
take  a  roll  and  write  in  it  concerning  Maher-shalal-hash- 
baZy  he  did  so  with  two  witnesses  (Isa.  8.  2).  Jeremiah 
called  in  subscribing  witnesses  to  a  deed  (Jer.  32.  10,  12), 
and  in  his  prayer  afterwards  he  refers  this  fact  to  the  express 
command  of  JHVH  :  Thou  didst  say  to  me,0  Lord  JHVH, 
Buy  the  field  for  money  and  take  witnesses  (Jer.  32,  25). 

That  the  Canaanite  law  permitted  a  man  accused  and 
acquitted  to  be  tried  again,  and  convicted  and  punished,  is 
provable  by  the  same  character  of  evidence.  The  Hebrew 
law  piles  protest  upon  protest  against  punishing  the  naki, 
the  man  once  acquitted. 

When  it  is  remembered  that  down  to  the  time  of  David 
certain  cases  were  tried  by  the  oracle,  it  becomes  apparent 
that  an  acquittal,  being  recognized  as  the  judgement  of 
Heaven,  and  as  such  infallible,  was  necessarily  final  and 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  103 

irreversible,  and  that  another  trial  for  the  same  offence  was 
inconceivable. 

Hence  the  criminal  law  has  a  terminology  of  its  own 
which  brings  out  necessary  distinctions.  An  innocent  man 
is  saddik,  a  guilty  one  rashd.  To  acquit  the  innocent  is 
hisdik,  to  convict  the  guilty  is  hirshia\  to  acquit  one  who 
has  committed  a  transgression,  or  to  allow  him  to  escape 
conviction,  is  nikkah. 

The  difference  between  an  innocent  man  and  one 
legally  declared  to  be  innocent  by  acquittal,  is  also  marked. 
The  former,  as  has  been  said,  is  saddik  (innocent),  the  latter 
is  naki  (not  guilty). 

In  this  exculpatory  verdict  there  lurked  then,  as  in  our 
own  day,  the  hidden  thought  which  the  Scotch  broadly 
speak  out  by  their  verdict  of  not  proven.  This  comes  out 
clearly  in  one  of  the  laws  of  the  judge-code,  already  referred 
to :  Do  not  condemn  to  death  the  naki  or  the  saddik  ;  for 
I  will  not  acquit  the  guilty  (Exod.  ^^3.  7).  The  judge  is 
here  exhorted  to  have  no  scruples  about  freeing  the  naki, 
however  strongly  he  may  be  convinced  of  his  guilt,  and  of 
the  error  which  produced  the  former  acquittal.  He  is 
forcibly  reminded  that  there  is  justice  in  Heaven  which 
corrects  human  errors.  In  that  tribunal  a  guilty  man 
cannot  plead  his  former  acquittal  by  an  earthly  court. 

So,  too,  in  Deut.  19.  10.  Elaborate  provision  is  there 
made  in  order  that  a  man  guilty  of  manslaughter,  which 
is  not  a  capital  offence,  shall  not  be  put  to  death.  The 
declared  object  is  that  the  blood  of  the  naki  shall  not  be 
shed,  an  act  which  would  bring  blood-guilt  {damim)  upon 
the  whole  community.  The  man  guilty  of  manslaughter 
and  punishable,  therefore,  is  naki  (acquitted  of  murder). 

Indeed,  the  word  naki  very  often  means  to  be  freed 


I04  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

from  something,  in  contrast  with  the  idea  of  having  been 
entirely  y^^^  from  any  connexion  with  it. 

If  Abraham's  messenger  should  do  his  errand  and 
others  cause  it  to  fail,  he  shall  be  7iaki  (freed,  acquitted) 
of  his  obligation  (Gen.  34.  41).  And  the  word  is  used  in 
a  like  sense  in  Joshua  2.  17-20.  If  a  man's  ox  gore  a  man 
to  death,  his  owner  shall  be  naki  (i.e.  acquitted  of  guilt 
under  certain  circumstances)  (Exod.  21.  28-32). 

When  the  community  has  ceremonially  cleared  itself 
of  blood-guilt  {nikkapper)  for  one  slain  by  an  unknown,  it 
prays  to  be  naki  (acquitted)  (Deut.  21.8). 

A  man  whose  place  is  in  the  army  is  freed  {naki)  from 
that  duty  when  he  has  newly  married  (Deut.  24.  5). 

There  are  many  passages  which  bear  out  our  interpre- 
tation of  saddik^  rasha\  hisdik,  hirshia\  and  nikkah.  Here 
are  some  of  them  :  i  Kings  8.  32  ;  2  Chron.  6.  23  ;  Exod.  21. 
28  ;  22.  8  ;  23.  8  ;  Deut.  25.  i,  2  ;  Isa.  5.  23  ;  2  Sam.  14.  9  ; 
15.  4;  Exod.  20.  7;  Deut.  5.  11  ;  Jer.  30.  11  ;  46.  28  ; 
Amos  2.  6  ;  5.  12  ;  Joel  4  (3),  21  ;  Nahum  i.  3  ;  Ps.  94.  21  ; 
Prov.  17.  15,  23,  26;  18.5,17;  19.5,9;  24.  24;  Job  9..  20; 

34.  17. 

Perhaps  the  most  objectionable  feature  of  Canaanite 
law  was  a  remnant  of  a  prehistoric  lex  talionis^  which  had 
as  a  consequence  that  for  the  crime  of  the  father,  the  son 
might  be  put  to  death,  and  perhaps  also  that  for  the  crime 
of  the  son,  his  father  might  be  put  to  death. 

The  only  concrete  case  on  this  subject  is  unfortunately 
hypothetical,  and,  worse  still,  fictitious.  The  wise  woman 
of  Tekoa  states  the  law  to  be  that,  when  a  man  who  has 
a  son  and  heir,  kills  another  who  has  not  yet  a  son  and 
heir,  the  murderer  and  his  son  shall  both  be  put  to  death. 
Strange  as  this  may  seem,  it  is  quite  in  the  spirit  of  the 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  IO5 

Code  of  Hammurabi.  The  murderer  is  punished  because 
of  his  crime ;  his  son  is  executed  because,  if  he  were  not, 
the  murderer's  position  would  be  superior  to  his  victim's ; 
whereas  the  object  of  the  Code  is  to  make  the  criminal's 
disadvantage  just  as  great  as  that  suffered  by  his  innocent 
victim.  That  the  son  had  done  nothing  to  deserve  death 
was  purely  irrelevant  in  a  system  of  laws  which  judged  the 
guilt,  in  acts  which  we  look  upon  as  high  crimes,  by  results 
and  not  by  intentions  or  motives  ;  which,  in  short,  looked 
upon  penalties,  however  personal  and  severe,  as  being  in 
the  nature  of  damages  for  private  trespasses,  demanding 
just  compensation,  regardless  of  motive.  That  children 
were  in  some  sense  the  father's  chattels,  and  not  free  citizens 
of  the  state,  is  a  proposition  involved  in  the  other.  Their 
feelings  or  sufferings  did  not  enter  into  the  legal  thought  of 
the  Hammurabi  Code.  Hence,  when  a  man's  son  was 
doomed  to  death  for  his  father's  offence,  it  was  the  father 
who  was  being  punished,  just  as  if  he  had  been  deprived 
of  a  slave,  of  a  ship,  or  of  any  other  valuable  chattel. 

This  principle  was  repellent  to  Hebrew  law,  being  in 
direct  opposition  to  the  Hebrew  thought  that  before  in- 
flicting capital  punishment  for  homicide,  the  murderous 
intent,  the  malice  aforethought,  of  the  perpetrator  must  be 
established.  The  rule  of  individual  responsibility  thus  laid 
down,  swept  away  all  laws  based  on  the  contrary  principle. 
Nothing  was,  however,  left  to  inference.  It  was  set  down 
in  plain  and  unmistakable  words.    Hence  the  declaration  : 

Fathers  shall  not  be  put  to  death  for  children,  nor 
children  be  put  to  death  for  their  fathers.  For  his  own 
crime  only  can  a  man  be  put  to  death  (Deut.  14.  16  ; 
2  Kings  14.  6  ;  2  Chron.  25.  4). 

Ezekiel,  too,  incidentally  refers  to  the  subject.     He  is 


Io6  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

addressing  his  fellow  exiles  in  Babylonia  (c.  590  B.C.). 
He  finds  that  their  patriotic  spirit  has  been  weakened, 
and  that  they  are  settling  down  to  the  belief  that  the 
nation  will  never  be  restored  to  its  home.  In  short,  they 
are  comfortable  and  quite  content  to  remain  in  the  new 
land.  Verbally,  however,  they  declare  the  Exile  a  calamity, 
and  invent  reasons  why  they  are  so  severely  punished.  It 
is  the  fault  of  their  ancestors,  who,  while  they  ruled  the 
land  of  Israel,  failed  in  duty  to  JHVH.  It  is  this  insincere 
casuistry  which  Ezekiel  is  belabouring.  He  reproaches 
them  with  applying  to  their  circumstances  a  heartless  and 
untrue  popular  saying  :  The  fathers  have  eaten  sour  grapes, 
and  the  children's  teeth  are  set  on  edge.  He  intimates 
that  they  are  absorbing  alien  ideas  and  setting  them  higher 
than  the  wisdom  of  their  ancestors ;  that  they  are  quoting 
alien  proverbs,  and  wrathfully  exclaims:  What  mean  ye, 
that  ye  use  this  proverb  concerning  the  land  of  Israel? 
And  then  he  delivers  JHVH'S  message,  that  every  indivi- 
dual soul  is  the  Lord's,  and  goes  on  with  a  subtle  satire  on 
Babylonian  legal  conceptions,  which  are  at  the  bottom  of 
the  objectionable  proverb  :  The  man  that  is  guilty  shall 
be  put  to  death.  If  a  man  be  innocent  and  do  what  is 
lawful  and  right,  he  is  innocent  (saddik)  and  shall  live, 
saith  JHVH.  If  his  son  violates  every  law  and  right,  he 
shall  be  put  to  death  ;  upon  him  is  the  blood-guilt  {damaw 
bo).  If  this  wicked  son  beget  a  good  son,  who  does  what 
is  lawful  and  right,  he  shall  not  be  put  to  death  for  his 
father's  crime.  He  shall  live.  It  is  the  guilty  father  who 
must  die  for  his  own  crimes.  Turning  on  bis  audience, 
he  tells  them  that  their  flippant  use  of  the  proverb,  in 
effect,  means  that  the  son  should  be  punished  for  his 
father's  crime,  whereas  every  man  is  answerable  for  himself. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  107 

And  in  his  peroration  he  urges  them  to  make  for  them- 
selves a  new  heart  and  a  new  spirit,  and  Israel  will  revive 
(Ezek.  18.  1-32). 

It  was  the  strong  assimilative  bent  of  the  Babylonian 
Golah  which  he  deplored  and  was  chastising,  and  in  doing 
so  he  brought  home  to  them  the  inferiority  of  Babylonian 
justice  as  compared  with  Hebrew  justice.  That  he  had  in 
mind  certain  provisions  of  the  Code  of  Hammurabi  is 
scarcely  to  be  doubted  (Lecture  I,  Sees.  116,  210,  and  230 
of  that  code). 

It  was  Zionism  which  Ezekiel  was  preaching,  to  rather 
dull  ears,  as  it  seemed  to  him. 

The  nations  (goyim)  shall  know  that  I  am  JHVH,  and 
I  will  take  you  from  among  their  midst,  will  gather  you 
out  of  all  lands,  and  will  restore  you  to  your  own  land 
{^6.  23,  24). 

And  the  climax  of  his  optimistic  eloquence  on  this 
theme  was  reached  in  his  37th  chapter,  that  wonderful 
description  of  the  reanimation  of  the  scattered  dry  bones 
into  a  glowing  and  glorious  organism  ('^j.  1-14). 

Perhaps  the  most  important  and  far-reaching  of  the 
secondary  conflicts  between  Canaanite  law  and  Hebrew 
law,  arose  over  the  question  of  the  killing  of  a  slave.  First- 
hand knowledge  of  the  former  we  have  none.  There  is, 
however,  the  Hammurabi  Code,  which  at  least  gives  us 
information  as  to  the  state  of  west-Asiatic  law  a  thousand 
years  before  the  Hebrew  conquest  of  Canaan,  and  the 
influence  of  which  must  have  been  appreciable  in  Palestine. 

According  to  it,  there  were  at  least  three  contingencies 
to  be  considered.  The  slave  might  have  been  killed  by 
a  freeman  other  than  his  master,  by  a  slave  or  by  the 
master  himself 


Io8  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

The  whole  tenor  of  the  Code  shows  that  the  resolutions 
were  as  follows.  The  freeman  who  killed  another  man's 
slave  had  to  furnish  another  in  his  stead  or  pay  his  value, 
to  wit,  one-third  of  a  mina  of  silver  (Sees.  ]  i6,  219,  231,  252). 
This  appears  to  have  been  the  money  value  of  a  slave 
male  or  female  (Sees.  116,  214). 

If  a  slave  killed  another  man's  slave,  there  is  nothing 
in  the  Code  to  make  his  master  answerable,  in  money  or 
otherwise.  Nor  is  there  any  indication  that  the  slave 
was  punished,  except  perhaps  by  the  loss  of  his  ear  or  his 
ears.  The  Code  had  great  regard  for  property,  and  slaves 
were  property.  The  only  punishment  that  could  be  inflicted 
on  them,  without  materially  reducing  their  working-power 
and  consequent  value,  was  cutting  off  their  ears.  Accord- 
ingly, we  learn  that  if  he  have  struck  the  cheek  of  a  freedman 
(Sec.  205),  or  have  repudiated  his  master  (Sec.  282),  in  cither 
case  he  loses  his  ear.  That  the  fear  of  abating  his  value  con- 
trolled the  policy  of  the  statute,  appears  from  the  fact  that 
where  an  assault  by  a  freeman  is  punishable  by  mutilation, 
it  is  the  offending  hands  that  are  cut  off  (Sees.  195,218,  226), 
and  where  a  freeman  has  spoken  that  which  is  criminal,  it 
is  his  guilty  tongue  that  is  cut  out  (Sec.  192). 

As  the  Code  does  not  treat  of  homicide,  it  throws  no 
direct  light  on  the  question  of  what  would  happen  to  the 
master  if  he  killed  his  slave.  The  general  principle,  how- 
ever, is  clear,  that  the  slave  is  the  mere  chattel  of  the  master. 
If  any  one  kills  or  maims  him,  he  must  pay  the  master, 
who,  according  to  the  law,  is  the  only  one  that  suffers  legal 
injury  (Sees.  116,  219,  231,  252,  199,  213,  220,  232). 

Another  noticeable  fact  is  that  while  assaults  without 
evil  consequences  are  punished  if  committed  on  gentlemen 
or  freedmen  (Sees.  202,  203, 204),  there  is  nothing  said  about 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  109 

an  assault  on  a  slave,  evidently  on  the  principle  that  if  his 
value  has  not  been  impaired,  his  master  has  suffered  no 
injury,  and  he  himself  is  legally  incapable  to  sustain  legal 
injury,  injuria. 

We  m,ay  fairly  conclude  that  according  to  the  Ham- 
murabi Code,  if  a  man  killed  his  slave  it  was  his  own 
concern  purely.     He  was  the  only  loser. 

Whether  the  Canaanite  law  of  3 000  B.C.  was  like  the 
Hammurabi  Code  is  impossible  to  know,  but  that  it  had 
points  of  resemblance  to  it  may  fairly  be  inferred  from  the 
attitude  of  the  Hebrew  law  on  the  subject. 

Exod.  21.  20,  21,  26,  27,  32  is  an  important  little  slave- 
code.     It    declares    as  a   principle   that  the  slave    is   the 
master's  property  (kaspo  hu)  (21.  21),  and  then  proceeds  to 
enact  exceptions  which  destroy  the  rule. 
They  are  as  follows  : 
Exod.  21.  20.     If  a  man  smite  his  male  slave  {'ebed)  or 
his  female  slave    (amah)   with   a  rod   (shebet)    and 
death  is  produced  under  his  hand,  nakom  yinnakem 
(Authorized  Version:  he  shall  be  surely  punished). 
Exod.  21.  21.     Notwithstanding  if  he  continue  a  day  or 
two  (yom  0  yomayim),  lo  yitkkam  (Authorized  Ver- 
sion :  he  shall  not  be  punished),  for  he  is  his  money 
{ki  kaspo  hu). 
Exod.  21.  26.     And  if  a  man  smite  the  eye  of  his  male 
slave  {^ebed)  or  the  eye  of  his  female  slave  (amah) 
that  it  be  destroyed,  he  must  free  him. 
Exod.  21.  27.     And  if  he  smite  out  the  tooth  of  his  male 
slave  ('ebed)  or  the  tooth  of  his  female  slave  (amah), 
he  must  free  him. 
Exod.  21.  32.     If  a  goring  ox  push  (to  death)  a  male 
slave  i^ebed)  or  a  female  slave  (amah),  the  owner  of 


no  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

the  OX  shall  pay  unto  the  owner  of  the  slave  thirty- 
shekels  of  silver,  and  the  ox  shall  be  stoned  (to  death). 

The  significance  of  this. Code  is  that  the  slave  is  recog- 
nized as  a  member  of  society,  and  certain  acts  injurious  to 
him  are  declared  to  be  crimes  against  the  state  and  punish- 
able by  it.  If  he  be  maimed  by  the  master  so  that  he 
loses  an  eye  or  a  tooth,  the  state  frees  him.  If  he  be  mur- 
dered by  the  master,  there  is  nothing  to  exempt  the  latter 
from  the  operation  of  the  general  law,  which  punishes  that 
crime  with  death.  If,  however,  he  die  under  his  master's 
hand  in  consequence  of  the  latter's  whipping,  it  is  not 
murder  punishable  by  death,  but  it  is  a  crime,  and  the  state 
inflicts  a  punishment,  nakoni  yinjtakein,  whose  nature  we 
shall  discuss  in  the  next  lecture.  If,  however,  he  do  not 
die  till  the  day  after  the  whipping,  there  is  no  punishment. 

If  the  slave  be  murdered  by  another,  the  latter,  whatever 
be  his  station,  is  undoubtedly  guilty  of  a  capital  offence. 

If,  however,  he  be  killed  by  a  goring  ox,  under  the 
circumstances,  which  in  the  case  of  a  freeman's  death  would 
entail  the  payment  of  vindictive  damages  {kofer^  ivergild), 
the  owner  of  the  ox  merely  pays  the  owner  of  the  slave 
thirty  silver  shekels  and  the  ox  is  stoned. 

When  we  consider  the  provisions  of  this  little  slave-code 
in  the  light  of  all  the  authorities,  there  is  much  material  for 
reflection.  When  the  Hebrews  acquired  the  land  of  Canaan 
they  found  slavery  in  existence,  and  were  unable  to  abolish 
it.  That  this  failure  was  a  severe  blow  to  the  Hebrew 
authorities  the  whole  literature  attests.  Upon  every  occa- 
sion it  is  declared  that  escape  from  Egyptian  slavery  was 
the  beginning  of  JHVH's  kingdom  in  Canaan,  and  that 
freedom  is  the  foundation  of  JHVH's  commonwealth. 

Remember  this  day  in  which  ye  came  out  from 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  III 

Egypt,   out   of  the  house   of  slavery    {bet  ^abadim) 
(Exod.  13.  3,  14  ;  20,  2  ;  Deut.  5.  6). 

I  am  JHVH,  your  Elohim,  who  brought  you  forth 
out  of  the  land  of  Egypt  that  ye  should  not  be  their 
slaves  (abadim)^  and  I  have  broken  the  bonds  of  your 
yoke  and  made  you  go  upright  (Lev.  26.  13). 

Thou  shalt  say  unto  thy  son  :  We  were  Pharaoh's 
slaves  i^abadim)  in  Egypt,  and  JHVH  brought  us  out 
of  Egypt  with  a  mighty  hand  (Deut.  6.  21  ;  7.  8). 

Lest  thine  heart  be  lifted  up,  and  thou  forget 
JHVH,  thy  Elohiin^  who  brought  thee  forth  out  of 
the  land  of  Egypt,  from  the  house  of  slavery  {bet 
'abadim)  (Deut.  8.  14;  13.  6  (5);  13.  11  (10)). 

I  brought  thee  up  out  of  the  land  of  Egypt  and 
redeemed  thee  out  of  the  house  of  slavery  (bet  ^abadim) 
(Micah  6.  4). 

I  made  a  covenant  with  your  fathers  in  the  day 
that  I  brought  them  forth  out  of  the  land  of  Egypt, 
out  of  the  house  of  slavery  {bet  ^abadim),  as  follows : 
At  the  end  of  seven  years  let  ye  go  every  man  his 
brother  a  Hebrew,  who  hath  been  sold  unto  ye.  And 
one  who  hath  served  you  six  years  send  him  out  free 
(at  the  end  of  the  six  years)  (Jer.  34.  13,  14). 

Ye  have  not  hearkened  unto  me  in  proclaiming 
liberty  {deror)  every  one  to  his  brother  and  every  one 
to  his  neighbour  (Jer.  34.  17). 

Proclaim  liberty  {deroi-)  throughout  all  the  land 

unto  all  the  inhabitants  thereof  (Lev.  25.  10). 

Efforts  to  abolish  slavery  began  at  an  early  day.     The 

first  step  was  to  destroy  the  master's  absolute  power  over 

the  life  of  the  slave,  and  to  convert  perpetual  slavery  into 

serfdom  for  a  limited  period  (six  years)  (21.  2).     At  this 


112  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

point  the  opposition  was  too  great,  and  the  federal  govern- 
ment had  to  yield  its  principle  of  the  equality  of  the  ger. 
The  latter  was  not  included  in  the  serfdom  statute.  Even 
in  its  modified  form,  the  emancipation  measure  was  not 
completely  successful.  The  masters  were  powerful  enough 
to  compel  the  government  to  permit  the  perpetual  slavery 
of  the  Hebrew  ezraJi  by  the  device  of  a  voluntary  contract. 
A  form  of  procedure  was  invented  (21.  5,  6),  by  which  the 
policy  of  the  state  was  overcome.  Such  a  law  would  have 
been  impossible  if  the  government  had  felt  itself  able  to 
resist.  The  ancient  Hebrew  jurists  saw,  just  as  clearly  as 
do  we,  that  fundamental  state  policies  ought  not  to  become 
the  plaything  of  the  greedy  and  the  ambitious,  under  any 
circumstances,  and  that  their  nullification  by  private  indi- 
viduals, whether  under  the  name  of  contract  or  otherwise, 
is  inconsistent  with  the  state's  sovereignty.  Nevertheless, 
they  yielded,  because  no  other  course  was  open  to  them. 

Notwithstanding  these  drawbacks,  the  advance  made 
inaugurated  an  era  of  human  progress. 

One  who  kidnapped  a  man  to  enslave  him,  suffered 
death  (Exod.  21.  16).  Hammurabi's  Code  had  a  similar 
provision  for  the  protection  of  freemen  (Sec.  14),  but  its 
fanatical  enthusiasm  for  slavery  was  displayed  by  de- 
nouncing the  death  penalty  against  one  who  attempted  to 
free  a  slave  (Sees.  15,  16,  19). 

The  important  point,  however,  was  that  for  the  first 
time  the  state  made  the  slave's  right  to  life  and  limb  its 
own  concern.  That  even  in  this  it  had  to  make  concessions 
is  true,  but  with  all  its  incompleteness,  it  was  the  foundation 
of  a  new  world  for  the  very  poor.  The  lordly  classes 
learned  that  it  was  not  at  their  will  that  the  underworld 
enjoyed  life,  nor  was  it  within  their  province  to  destroy  it. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  II3 

The  terms  nefesh,  ish,  adam,  red  (man,  neighbour)  took  on 
a  new  meaning  (Gen.  9  56;  Exod.  21.  12;  Lev.  24.  17, 
21 ;  Num.  '>^^.  30 ;  Deut.  19.  11;  Josh.  20.  3).  A  slave  was 
at  last  a  man,  a  ben-adam. 

In  the  light  of  this  advance,  the  halting  features  of  the 
statute  are  not  as  important  as  at  first  they  seem. 

The  20th  and  21st  verses,  which  define  the  crime  of 
a  master  whose  slave  dies  in  consequence  of  his  whipping 
as  less  than  murder,  are  in  harmony  with  the  general  law 
that  without  malice  aforethought  there  cannot  be  murder. 

In  the  case  put  there  is  everything  to  exclude  the  idea 
of  malice.  On  the  contrary,  the  master  is  acting  according 
to  his  right  and,  in  the  thought  of  that  day,  according  to 
his  duty.  It  is  not  the  case  of  a  wanton  assault ;  it  is  a 
case  of  lawful  whipping,  not  with  anything  that  caprice 
or  anger  may  dictate,  but  with  the  lawful  instrument  in 
general  use  for  that  purpose,  the  rod  [shebet).  If  it  were 
any  other  weapon,  the  master  would  no  longer  have  the 
benefit  of  this  provision,  but  would  come  under  the  general 
law  regulating  homicide  (Num.  '>,^,  16,  17,  18). 

It  is  true  that  whipping  with  the  shebet  sometimes 
resulted  in  death,  but  it  was  permitted  by  law,  and  regula- 
tions concerning  it  were  enacted  (Deut.  25.  2,  3 ;  2  Sam. 
7.  14).  No  danger  was  apprehended  from  it.  *  If  thou 
beatest  him  with  the  shebet^  he  will  not  die'  (Prov.  23.  13). 
Parents  were  admonished  to  use  it  in  correcting  the  faults 
of  their  children  (Prov.  13.  24  ;  22.  15  ;  23.  13  ;  29.  15).  It 
was  therefore  the  master's  usual  and  proper  instrument  for 
disciplining  the  slave. 

In  view  of  the  master's  pecuniary  interest  in  the  life 
and  work  of  his  slave,  an  intent  to  disable  or  kill  him  could 
not  fairly  be  presumed.  If,  therefore,  the  slave  died,  the 
s.  I 


114  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

reasonable  presumption  was  to  ascribe  the  death  to  his 
constitutional  weakness.  And  it  is  this  presumption  which 
is  embodied  in  the  2Tst  verse,  that  if  the  slave  do  not  die 
on  the  day  of  the  whipping,  the  master  goes  free.  But  if 
he  die  on  the  day  of  the  whipping,  this  presumption  is 
rebutted  and  overcome,  and  the  master  must  suffer  his 
punishment. 

The  effect  of  this  law  was  to  compel  the  master  to 
remember  that  in  administering  punishment,  he  was  in 
a  sense  exercising  a  public  function,  and  that  the  day  for 
considering  it  his  private  affair  was  over.  Just  as  Deut. 
25.  2,  3  prescribed  moderation  in  whipping  to  courts  and 
their  officers,  so  the  statute  imposed  it  on  masters. 

It  is  certain  that  this  law  did  not  abolish  slavery,  but 
it  so  ameliorated  its  features  that  its  gradual  disappearance 
might  reasonably  be  hoped  for.  That  these  hopes  were 
never  realized  to  the  full,  it  is  needless  to  say.  Every 
advance  of  mankind  begets  a  desire  for  further  improvement. 
This  is  the  immutable  law  of  progress. 

When  slavery  had  largely  disappeared,  economic 
equality  did  not  result.  The  freed  slaves  doubtless  fell 
into  the  ranks  of  the  sekirim^  the  dallim^  and  the  ehyonim 
of  later  ages,  who,  with  their  great  spokesmen,  the  writing 
prophets,  agitated  for  the  betterment  of  their  lot. 

There  remains  for  consideration  the  meaning  of  the 
term  nakom  yinnakem^  which  is  the  punishment  imposed 
by  the  law  (Exod.  21.  20)  on  the  master  whose  slave  dies 
during  a  whipping  or  afterwards  on  the  same  day.  This 
involves  a  consideration  of  Hebrew  modes  of  punishment 
for  crimes,  and  may  well  be  deferred  to  the  next — the  last 
lecture  of  this  series. 


THE    ANCIENT   HEBREW    LAW    OF    HOMICIDE  II5 

V 

The  notions  of  punishment,  retaliation,  and  revenge  are 
nearly  allied.  Revenge  is  the  primitive  and  unregulated 
impulse  to  hurt  one  who  has  inflicted  an  injury.  Retalia- 
tion is  revenge  modified  by  a  sense  of  justice  and  due 
proportion.  It  operates  in  two  ways.  Either  it  inflicts 
upon  the  wrong-doer,  as  nearly  as  may  be,  the  kind  and 
quantity  of  harm  he  has  done,  or  it  ascertains  the  particular 
portion  of  his  body  which  has  been  the  instrument  of  the 
wrong,  and  deprives  him  of  it  by  mutilation.  Legal 
punishment,  while  it  has  as  basic  element  the  idea  under- 
lying the  other  two,  is  essentially  different  in  this,  that 
while  they  keep  in  mind  a  certain  personal  satisfaction  to 
the  injured  party,  it  regards  nothing  but  the  welfare  of  the 
whole  community. 

Revenge,  as  a  general  rule  of  conduct,  necessarily  ends 
when  society  becomes  reasonably  organized.  It  is  then 
that  retaliation,  the  lex  talionis,  is  introduced.  The  state 
is  not  yet  exercising  all  of  its  proper  functions,  but  leaves 
some  of  them  to  be  administered  by  constituent  sub- 
divisions, whether  they  be  families,  clans,  tribes,  or  guilds. 

In  doing  this  it  is  not  neglecting  its  duty.  It  has 
simply  not  become  conscious  of  it.  Early  states  are  all 
politico-ecclesiastical,  that  is,  they  have  a  civil  and  eccle- 
siastical government,  however  rudimentary,  and  these 
constitute  the  ruling  power.  By  the  natural  law  of  self- 
defence,  they  resist  aggression  directed  against  these 
functions.  Hence  it  is  that  the  acts  which  early  states 
recognized  as  crimes  or  offences  against  the  commonwealth 
are  those  which  are  of  a  public  nature,  a  kind  of  treason 
against  church  or  state,  and  they  are  generally  viewed  as 
worthy  of  death. 

I  a 


ir6  THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE 

Offences  against  private  individuals  are,  at  this  stage, 
looked  upon  as  trespasses,  mere  civil  injuries,  with  which 
the  community  as  a  whole  has  no  other  concern  than  to 
preserve  the  peace,  so  that  the  safety  of  the  state  may 
not  be  endangered.  To  this  end  it  establishes  tribunals 
which  arbitrate  between  disputants  and  determine  what 
satisfaction  the  one  shall  give  the  other.  This  view  is  so 
fundamental  that  even  now  states  do  not  otherwise 
interfere  between  individuals  in  the  great  mass  of  trans- 
actions and  disputes. 

The  time  comes,  however,  when  states  recognize  that 
there  are  some  wrongs  inflicted  on  private  individuals 
which,  if  not  vigorously  checked,  indirectly  sap  the  foun- 
dations of  the  state.  These  are  then  treated  as  crimes 
in  analogy  to  those  acts  which  are  direct  assaults  on  the 
state. 

Of  all  the  trespasses  thus  advanced  to  the  degree  of 
crime,  the  most  important  is  homicide.  The  advance, 
however,  is  not  made  at  one  leap ;  it  goes  by  stages. 
While  the  retaliatory  state  subsists,  the  individual  is  never 
compelled  to  stand  alone.  His  family,  clan,  tribe,  or 
guild  constitutes  a  kind  of  corporation,  which  assumes  the 
duty  of  guarding  or  avenging  the  lives  of  its  members. 
Of  such  corporations  there  may  be  many  in  a  state.  If 
a  member  of  one  of  them  kills  a  member  of  another, 
the  latter  retaliates  in  kind.  There  is  as  yet  no  sufficient 
development  of  comity  between  these  constituent  bodies 
to  provide  for  arbitration,  for  judicial  investigation,  and 
hence  the  rude  justice  of  the  lex  talionis  is  established. 

If,  however,  the  slayer  and  the  slain  are  both  members 
of  the  same  subdivision,  the  rule  does  not  apply.  No 
organization    could    grow    or   achieve    permanence    if    it 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  II7 

invariably  supplemented  the  killing  of  one  of  its  members 
by  the  destruction  of  another  in  a  continuing  series.  A 
new  interest,  the  communal,  intei-venes  to  regulate  private 
feuds  within  the  organization.  Hence  arises  legal  punish- 
ment to  replace  the  lex  talionis. 

In  a  state  in  this  stage  of  organization,  both  systems  co- 
exist, a  rudimentary  kind  of  legal  punishment  for  offences 
within  the  subdivision,  retaliation  for  those  without. 

The  superiority  of  the  system  which  bases  punishment 
on  communal  policy  over  that  of  mere  retaliation,  becomes 
apparent  by  degrees.  In  time  it  is  fully  realized,  and  then 
the  state  withdraws  from  subordinate  organizations  the 
function  of  dealing  with  crime  and  itself  assumes  it,  to 
the  exclusion  of  all  other  authority.  Then  it  is  that  a 
state  may  be  said  to  be  fully  organized. 

This  form  of  opinion  arises  when  a  country  is  sub- 
stantially consolidated,  when  its  inter-clan  feuds  have  been 
practically  abolished,  when  individual  citizens  feel  them- 
selves in  direct  and  intimate  relation  with  the  state,  and 
the  state  becomes  conscious  that  these  citizens  are  its  true 
and  ultimate  constituents. 

The  national  mission  of  keeping  the  peace  between  its 
constituent  tribes  or  clans  has  been  accomplished,  and  in 
its  place  comes  the  national  duty  of  keeping  the  peace 
between  its  individual  citizens.  The  function  of  preventing 
the  decimation  of  one  clan  by  another  is  replaced  by  that 
of  preventing  one  man  from  killing  another.  Individual 
responsibility  being  established,  the  mild  internal  homicide 
law,  which  inter-clan  hostility  created,  must  be  modified 
so  that  wilful  murder  shall  be  inexorably  punished  by 
death,  while  less  guilty  kinds  of  homicide  shall  not  be 
condoned  by  mere  money  payments. 


Il8  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

The  Hammurabi  Code  shows  us  Babylonia  in  the 
retah'ation  stage,  from  which  it  is  scarcely  beginning  to 
emerge.  It  has  not  yet  made  homicide  the  affair  of  the 
state.  Evidently  the  lex  ialionis  is  in  full  force  between 
the  several  constituent  bodies  of  the  state.  As  regards 
minor  offences,  it  has  numerous  provisions  for  inflicting  on 
the  perpetrator  of  a  personal  injury,  the  same  kind  of  hurt, 
and  has  many  others  for  mutilation,  by  cutting  out  or 
cutting  off  the  perpetrator's  offending  member,  the  eye 
for  evil  looks  (Sec.  193),  the  tongue  for  evil  speech 
(Sec.  192),  the  hands  for  evil  blows  (Sec.  195),  the  breasts 
for  a  nurse's  wrong-doing  (Sec.  194),  and  so  on. 

It  has  been  many  times  said,  and  is  constantly  repeated, 
that  the  lex  talionis  is  the  law  of  the  Torah. 

When  it  is  remembered  that  the  Hebrew  law  provides 
for  a  careful  trial  of  the  accused,  and  declares  that  malice 
aforethought  must  be  ascertained  or  the  offence  is  not 
capital,  it  is  scarcely  necessary  to  repeat  that  alongside  of 
this  law  there  could  not  be  recognized  another  which 
ignores  all  these  points  and  dooms  to  death  the  man  who 
has  just  escaped  the  death  sentence.  The  notion  that  two 
systems  of  law  so  contrary  to  each  other  can  be  applicable 
in  the  same  case,  in  the  same  place,  at  the  same  time, 
is  too  wild  for  serious  consideration.  Yet  there  is  a 
general  opinion  that  'the  Avenger  of  Blood'  had  but  to 
wait  outside  of  the  court  room  until  the  tribunal  had 
acquitted  the  prisoner,  and  that  then  he  lawfully  killed 
him,  and  that  the  tribunal  acquiesced  in  this  disposition 
of  the  case. 

It  is  interesting  to  trace  the  history  of  this  widely- 
diffused  error. 

There  seems  to  have  been  in  pre-Hebraic  times  a  maxim 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  II9 

professing  to  sum  up  in  popular  speech  the  character  and 
effect  of  the  law  of  retaliation.  It  survives  in  the  Pentateuch 
in  three  versions,  each  somewhat  varying  from  the  others. 
Its  origin  was  probably  in  the  remote  past,  when  it  may 
have  been  in  substantial  accord  with  the  law  of  retaliation 
as  then  practised.  That  it  was  older  than  the  Hammurabi 
Code  is  plain.  The  latter  had  already  advanced  to  the 
point  that  between  ordinary  citizens  it  did  not  demand 
an  eye  for  an  eye,  or  a  tooth  for  a  tooth,  but  was  satisfied 
with  a  mina  of  silver  for  an  eye  and  a  third  of  a  mina  of 
silver  for  a  tooth.  Changes  in  the  law,  however  sub- 
stantial, do  not  seem  to  affect  the  life  of  such  maxims. 
Men  go  on  repeating  them,  unconsciously  converting  the 
literal  into  metaphorical  meaning,  so  as  to  avoid  doing 
violence  to  their  actual  opinions. 

Of  this  truth,  the  maxim  under  consideration  is  a 
striking  illustration.  In  order  that  this  may  be  the  better 
understood,  we  must  look  not  only  at  the  various  texts 
of  the  maxim,  but  at  the  context  in  which  they  are  em- 
bedded. These  will  show  the  circumstances  under  which 
it  was  cited,  and  the  purpose  of  citing  it. 

The  first  of  the  versions  is  in  Exodus,  chapter  21. 
Here  are  text  and  context : 

Exod.  21.  22.  If  men  strive  and  hurt  a  woman  with 
child,  so  that  her  fruit  depart  from  her,  and  yet  no 
mischief  follows,  he  shall  be  surely  punished  according  as 
the  woman's  husband  will  lay  upon  him  ;  and  he  shall 
pay  as  the  judges  determine. 

21.  23.  And  if  any  mischief  follow,  then  thou  shalt 
give  life  for  life  {nefesh  tahat  nefesh), 

21.  24.  Eye  for  eye,  tooth  for  tooth,  hand  for  hand, 
foot  for  foot. 


I20  THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE 

21.  25.  Burning  for  burning,  wound  for  wound,  stripe 
for  stripe. 

The  Deuteronomy  version  is  contained  in  the  following : 

Deut.  19.  16-18  provides  for  the  trial  of  a  witness  on 
the  charge  of  perjury  in  a  trial  for  the  capital  offence  of 
sarah  (Hebrew  Polity^  pp.  51-61). 

19.  19.  (If  convicted)  then  shall  ye  do  unto  him,  as  he 
had  thought  to  have  done  unto  his  brother ;  so  shalt  thou 
put  the  evil  away  from  among  you. 

19.  20.  And  the  rest  will  hear  and  fear  and  will  not 
henceforth  commit  such  evil  among  you. 

19.  21.  Have  no  pity:  Life  for  life  {iiefesh  be-nefesh)^ 
eye  for  eye,  tooth  for  tooth,  hand  for  hand,  foot  for  foot. 

The  Leviticus  version  is  part  of  a  peculiar  text,  con- 
cerning which  something  was  said  at  the  end  of  the  third 
lecture.     It  is  as  follows  : 

Lev.  24.  10-16  is  the  report  of  a  trial  for  blaspheming 
the  Skeniy  the  decision  and  the  law  promulgated  thereupon, 
that  one  guilty  of  that  offence  must  be  stoned  to  death 
by  the  ^Edah^  and  that  the  ger  is  just  as  amenable  to  this 
law  as  the  ezrah, 

24.  17.  He  that  killeth  any  man  shall  be  put  to  death. 

24.  18.  He  that  killeth  a  beast  shall  make  it  good 
{yeshallemennah)^  beast  for  beast  (nefesh  tahat  nefesh). 

24.  19.  If  a  man  cause  a  blemish  {mum)  in  his  neighbour, 
as  he  hath  done,  so  shall  it  be  done  to  him. 

24.  20.  Breach  for  breach,  eye  for  eye,  tooth  for  tooth : 
as  he  hath  caused  a  blemish  {mum)  in  a  man  so  shall  it 
be  done  to  him. 

24.  21.  He  that  killeth  a  beast  shall  make  it  good 
iyeshallemennah)  and  he  that  killeth  a  man  shall  be  put 
to  death. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  121 

24.  32.  Ye  shall  have  one  mishpat  for  ger  as  for  ezrah. 
I  am  JHVH  your  God. 

24.  23.  And  Moses  spake  to  the  Bne-Israel  that  they 
should  bring  forth  him  that  cursed  out  of  the  camp  and 
stone  him  with  stones.  And  the  Bne- Israel  did  as  JHVH 
commanded  Moses. 

The  maxim  refers  only  to  homicide  and  to  maiming. 
We  know  the  Hebrew  law  of  both.  Homicide  is  either 
murder,  which  is  a  capital  offence,  or  it  is  manslaughter, 
which  is  punishable  by  a  form  of  imprisonment.  Maiming 
is  a  form  of  assault  and  battery.  This  offence  also  has  two 
degrees.  It  is  either  simple  assault  and  battery,  which 
is  punishable  by  compensatory  damages  (Exod.  21.  18,  19), 
or  it  is  aggravated  assault  and  battery  (of  which  maiming 
is  one  kind),  which  is  punishable  by  vindictive  damages  to 
be  assessed  by  the  court  {pelilim)  (Exod.  21.  22). 

The  maxim  in  any  of  its  forms  contradicts  the  Hebrew 
law  of  homicide  and  of  assault  and  battery.  It  also  con- 
tradicts the  pre-Hebraic  Canaanite  law  of  homicide,  and 
probably  of  assault  and  battery,  because  it  excludes  kofer, 
or  wergild,  which  was  a  recognized  institution,  against 
which  the  great  law  reform  waged  war. 

That  it  was  a  mere  forensic  statement  appended  to 
the  enunciation  of  a  law,  with  which  it  had  some  fancied 
relation,  seems  clear  enough.  The  law  of  Deuteronomy  19 
proves  it.  The  offence  of  perjury  in  a  trial  for  the  capital 
crime  of  sarah  is  made  capital.  The  only  punishment 
that  could  be  inflicted  was  death.  It  was  a  new  capital 
crime,  and  the  promulgation  of  the  law  itself  was  followed 
by  the  argumentative  use  of  this  popular  maxim.  There 
could  be  no  question  of  eye  or  tooth  or  hand  or  foot,  and 
yet  we  have  the  whole  catalogue.     The  object  is  plain. 


122  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

It  is  as  if  the  herald  who  proclaimed  the  statute  had 
followed  up  his  announcement  by  reminding  them  that 
the  perjured  witness  was  only  getting  his  deserts  according 
to  the  old  maxim. 

Its  use  in  the  Exodus  statute  is  not  for  any  other 
purpose.  I  have  already  indicated  that  the  text  is  de- 
fective. It  provides  first  for  the  punishment  of  simple 
assault  and  battery,  without  serious  consequences,  by  com- 
pelling the  assailant  to  pay  for  his  victim's  cure  and  for 
his  loss  of  time  (Exod.  21.  18,  19).  It  then  provides  for 
the  corporal  punishment  of  an  aggravated  assault  on  a 
slave  resulting  in  death  (Exod.  21.  20).  Finally  it  punishes 
an  aggravated  assault  on  a  woman  which  produces  the 
death  of  an  unborn  child.  The  penalty  is  the  payment 
of  vindictive  damages,  and  there  the  matter  ends.  That 
if  the  woman  too  should  die,  corporal  punishment  would 
follow,  as  in  cases  of  manslaughter,  is  highly  probable. 
By  corporal  punishment  I  mean  either  scourging  or  im- 
prisonment. 

The  texts,  however,  are  confused,  and  are  made  to 
say  that  the  death  of  the  unborn  child  does  not  change 
the  character  of  the  offence  from  simple  assault  to  aggra- 
vated assault,  because  no  ason  (mischief,  harm)  results. 

In  the  teeth  of  this  saying  there  is  the  provision  for 
vindictive  damages,  which  is  itself  the  sign  that  the  law 
considers  the  injury  serious.  Then  there  is,  too,  the  law 
that  manslaughter,  the  actual  killing  of  a  man  in  hot 
blood  or  by  casualty,  is  not  to  be  punished  with  death. 

Keeping  this  in  mind,  the  idea  that  a  man  could  be 
capitally  punished  who  hurt  a  woman  without  malice  afore- 
thought and  without  intent  even  to  strike  her,  is  simply 
inadmissible.      One   may   well   suspect  that   some   words 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  I23 

are  missing  from  verse  23,  which  described  an  offence  of 
great  gravity,  and  also  provided  a  severe  specific  punish- 
ment for  it,  and  that  the  maxim  was  then  invoked  just  as 
in  Deuteronomy.  But  even  if  this  very  probable  hypo- 
thesis is  untrue,  the  maxim  may  have  been  quoted  to 
point  a  case  of  damages  merely. 

This  is  exactly  what  has  happened  in  the  Leviticus 
text.  He  that  killeth  a  beast  shall  make  it  good  (shall 
pay  for  it)  (yeshallemennaJi)  nefesh  tahat  nefesh.  The 
Authorized  Version  translates  this  leading  phrase  of  the 
maxim  beast  for  beast,  instead  of  life  for  life.  And  the 
translation  is  a  correct  rendering  of  the  meaning.  It  has, 
however,  not  been  perceived  that  the  text,  after  it  announces 
a  liability  to  pay  money  damages,  quotes  this  very  maxim 
by  way  of  support.  We  have,  in  effect,  a  definition  which 
declares  that  making  good  by  a  money  payment  a  loss 
inflicted,  is  an  instance  of  the  application  of  the  old  maxim 
7iefesh  tahat  nefesh  (life  for  life).  And  this  Leviticus  text 
is  the  only  one  of  the  three  which  makes  maiming  {mum) 
a  separate  form  of  aggravated  assault  and  battery  which 
is  to  be  punished  in  kind  :  '  As  he  hath  done,  so  shall  it  be 
done  to  him  '  (Lev.  24. 19).  And  then  follows  the  rest  of  the 
maxim  :  breach  for  breach,  eye  for  eye,  tooth  for  tooth. 

That  this  has  no  other  meaning  than  that  money 
damages  adequate  to  punish  for  the  injury  must  be 
assessed  against  the  aggressor,  is  certainly  inferable  from 
the  apposition  of  yeshallememiah  with  nefesh  tahat  nefesh. 
So  read  we  have  simply  the  same  law  as  in  Exodus  21.  22, 
that  in  a  case  of  aggravated  assault  and  battery  mere 
compensation  will  not  suffice,  but  the  judges  are  to  assess 
vindictive  damages  against  the  aggressor  proportioned  to 
the  gravity  of  the  injury. 


124  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

There  is  another  thing  that  must  not  be  overlooked. 
The  maxim  in  its  fullest  form  is  found  in  the  Exodus 
text,  and  follows  hard  on  a  piece  of  old  Canaanite  law 
(Exod.  21.  23-5).  The  Hebrew  law  of  assault  and  battery 
is  uniform,  that  in  no  event,  whatever  the  result,  can  the 
penalty  be  death  where  the  intent  to  murder  is  lacking. 
Moreover,  the  cardinal  principle  of  Hebrew  law  is  that  every- 
body is  equal  before  the  law.  The  Code  of  Hammurabi, 
however,  devotes  six  sections  to  the  case  of  assault  on 
a  pregnant  woman  (Sees.  209-14 ).  Five  of  these  provide 
for  the  payment  of  compensation  only,  the  sixth  (Sec.  310) 
provides  that  if  the  victim  be  a  gentleman's  daughter,  the 
assailant's  daughter  shall  be  put  to  death.  We  have 
already,  in  our  first  lecture,  intimated  that  in  later  times 
this  provision  must  have  been  interpreted,  even  in  Babylonia 
and  Assyria,  to  mean  the  payment  of  punitive  damages,  in 
addition  to  compensation.  It  is  an  offshoot  of  this  piece 
of  Babylonian  woman-law  which  has  somehow  been  pre- 
served in  our  text,  though  it  is  in  glaring  contradiction  to 
every  principle  of  Hebrew  law.  The  reasonable  explanation 
is  that  among  the  old  documents  which  went  into  the  com- 
pilation of  our  books,  odd  pieces  of  zikne  ha-ir  law,  having 
in  them  Canaanite  admixtures,  crept  in  and  remained  un- 
detected, because  they  had  become  obsolete  in  practice. 

There  is  just  one  other  similar  piece  of  Canaanite 
woman-law  with  retaliatory  features.  It  is  contained  in 
Deuteronomy  25.  11,  12,  and  contrary  to  all  Hebrew  law 
and  practice,  prescribes  mutilation,  the  cutting  off  of  the 
offending  hand,  as  punishment.  It  is,  however,  quite  in 
line  with  the  Hammurabi  Code,  which  prescribed  mutila- 
tion in  no  less  than  twelve  sections  (Sees.  192,  193,  194, 
195.  196,  197,  200,  205,  218,  226,  253,  and  282). 


THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE  125 

When  we  find  obsolete  Canaan ite  laws  thus  recorded, 
we  need  not  be  surprised  to  meet  a  popular  Canaanite 
legal  maxim,  which  everybody  quoted  at  all  times,  with 
no  definite  meaning,  but  merely  by  way  of  illustration. 
The  fullest  version  of  the  maxim  accompanies  the  gravid 
woman's  law  of  Exodus.  In  Leviticus  the  maxim  is  cut 
in  two.  Its  first  and  most  significant  member,  nefesh 
tahat  nefesh,  frankly  means  a  money  payment,  and  there 
is  no  good  reason  for  attributing  to  the  less  significant 
phrases  of  the  maxim  a  higher  value  than  to  its  chief 
portion.  In  Deuteronomy  its  use  as  a  mere  illustration 
is  palpably  plain. 

In  determining  what  punishments  were  imposed  by 
Hebrew  law,  we  ought  not  to  overlook  Ezra's  views  on 
the  subject.  He  was  a  Kohen  and  a  thorough  adept  in 
the  law,  *  a  ready  scribe  in  the  law  of  Moses '.  He  was 
a  leader  of  his  people  and  had  very  definite  ideas  on  the 
subject  of  reconstructing  the  Jewish  state  in  its  pristine 
glory.  He  must  have  been  a  person  of  eminence,  or 
otherwise  he  could  not  have  obtained  from  Artaxerxes  the 
liberal  charter  which  authorized  him  practically  to  rule 
a  new  state  which  he  was  to  found  on  the  site  of  the  old 
Judea  of  his  fathers,  there  to  administer  the  Torah  of 
JHVH  and  to  enforce  its  hok  and  mishpat.  Moreover, 
in  the  year  450  B.C.,  there  were  better  means  of  knowing 
and  understanding  the  old  law  than  are  accessible  to  us. 
That  the  terms  of  the  charter  originated  with  Ezra,  can 
scarcely  be  doubted.  The  document  is  in  Ezra  7.  12-26. 
These  are  the  words  :  And  thou  Ezra,  according  to  the 
hokmat  elahak  which  is  in  thy  hands,  set  judges  and 
dayyanin  to  judge  all  the  people  beyond  the  river  for  all 
such  as  know  the  laws  of  thy  God,  and  as  to  those  that 


126  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

know  them  not,  teach  them.  And  whoever  will  not  do 
the  law  of  thy  God  and  the  law  of  the  King,  let  judgement 
(dmah)  be  executed  speedily  upon  him,  whether  for  death 
{le-mot),  for  banishment  (lishrosht)^  for  amercement  of 
goods  {laanash  niksin)  or  for  imprisonment  (esurin). 

The  Authorized  Version  renders  shaftin  we-dayanin^ 
magistrates  and  judges.  There  can  be  little  doubt  that  the 
author  was  translating  shofetivi  zve-shoterini  (Deut.  16.  18), 
and  that  therefore  the  rendering  should  be  'judges  and 
officers  \  dayyan  being  the  equivalent  of  shoter,  who  is  the 
official  that  executes  the  judgement  of  the  court  in  the 
manner  of  our  sheriff. 

The  Ezra  charter  enumerates  four  kinds  of  punishment 
for  criminal  offences. 

The  Torah  knows  of  six  : 

Death:  (Exod.  11.  12). 

Karet:  (Gen.  17.  14;  Exod.  12.  15,  19;  30.  ^^,  38; 
31.  14,  15  ;  Lev.  7.  20,  21,  25,  27;  17.  4,  9,  14;  18.  29; 
19-  5-8>  13.  20  ;  20.  5, 17, 18  ;  32.  3  ;  Num.  9. 13  ;  15.  30, 31 ; 
19.  13,  20). 

Amercement:  (Exod.  21.  19). 

Enslavement :  (Exod.  22.  3). 

Scourging:  (Deut.  22.  18;  25.  2,  3  ;  Lev.  19.  20). 

Nakoni  yinnakem  :  (Exod.  21.  20). 

Two  of  these  six  (death  and  amercement),  are  plainly 
specified  in  the  Ezra  charter ;  two  others  (enslavement  and 
scourging ;  a  slave's  punishment)  had  become  obsolete 
by  the  emancipation  law,  leaving  for  consideration  only 
Karet  and  nakom  yinnakem^  which  stand  in  the  place  of 
Ezra's  banishment  and  imprisonment. 

That  Karet  in  the  early  ages  meant  banishment,  is 
probable.      The   uncircumcised   male   (Gen.   17.   14)    and 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  I27 

the  man  who  flouted  the  celebration  of  the  Exodus 
(Exod.  12.  15,  19;  Num.  9.  13),  were  both  to  be  cut  off 
from  among  their  people.  These,  however,  were  grave 
offences  against  national  duty.  The  rite  of  circumcision 
was,  in  effect,  the  admission  to  the  citizenship  of  the 
nation,  while  the  Passover  celebration  was  the  symbol  of 
the  nation's  birth  which  every  patriot  profoundly  revered. 
That  a  man  who  failed  in  these  respects  was  looked  upon 
as  a  traitor,  is  not  to  be  wondered  at.  Exile  was  not 
deemed  too  severe  a  punishment. 

There  are,  however,  many  other  cases  calling  for  the 
punishment  of  karet  which  could  not  possibly  have  been 
punished  by  exile.  Such  cases  are  the  following :  eating 
the  flesh  oishelamim  offerings  while  unclean  (Lev.  7.  20, 21) ; 
eating  the  fat  of  a  fire-offering  (Lev.  7.  25) ;  eating  blood 
(Lev.  7.  27;  17.  14);  killing  an  ox,  lamb,  or  goat  in  the 
camp  and  not  bringing  it  as  a  korban  (Lev.  1 7.  4,  9) ; 
compounding  an  imitation  of  the  holy  oil  (Exod.  30.  '^^'^ 
or  the  holy  perfume  (Exod.  30.  38) ;  eating  of  shelamin 
offerings  on  the  third  day  (Lev.  19.  5-8);  committing 
certain  improprieties  (Lev.  20.  18)  ;  eating  of  the  kodashim 
while  unclean  (Lev.  22.  3) ;  failing  to  purify  one's  self  when 
unclean  (Num.  19.  13,  20). 

These  are  all  trespasses  which  would  be  adequately 
punished  by  temporary  seclusion  or  excommunication. 
To  have  banished  from  the  land  all  persons  guilty  of 
these  ecclesiastical  peccadilloes  would  have  weakened  the 
kingdom. 

That  karet  at  any  time  meant  the  death-penalty  is 
highly  improbable.  Perhaps  the  strongest  argument  in 
favour  of  the  view  that  it  did,  may  be  derived  from  the 
passages  Exod.  31.  14,  15.     In  the  former,  one  who  works 


128  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

on  the  Sabbath  incurs  the  penalty  of  karet ;  in  the  latter, 
the  penalty  is  death.  This,  however,  warrants  no  other 
conclusion  than  that  the  latter  provision  is  an  amendment 
of  the  former.  Indeed,  there  is  distinct  evidence  that  the 
law  was  changed  in  some  such  manner.  In  Num.  15.  3^-6 
there  is  a  reported  case  of  a  man  who  gathered  sticks  on 
the  Sabbath.  The  authorities  seem  to  have  been  in  doubt 
whether  the  offence  was  punishable.  The  oracle  decided 
that  the  penalty  must  be  death  by  stoning. 

The  conclusion  would  seem  to  be  that  the  punishment 
of  exile  for  working  on  the  Sabbath  was  deemed  impolitic, 
and  that  the  death-penalty,  which  might  be  expected  to 
prove  a  more  effective  deterrent,  was  at  an  early  date 
substituted  by  way  of  amendment. 

Karet  may  therefore  be  said  to  have  two  meanings, 
an  older  and  a  newer  one ;  the  former  being  exile,  and  the 
latter  a  lighter  penalty  to  be  borne  at  home  for  a  limited 
period. 

Ezra  seems  to  have  adopted  the  older  karet,  that  is 
exile,  for  his  new  commonwealth,  calling  it  sheroshi  (up- 
rooting) in  his  Aramaic. 

Ezra's  esurin  (imprisonment)  has  no  parallel  in  the 
older  law,  unless  it  be  found  in  the  nakoin  yinnakem  of 
Exod.  21.  20. 

These  words  are  rendered  by  the  Authorized  Version ; 
he  shall  be  surely  punished.  No  substantial  objection  can 
be  urged  against  the  mere  translation  of  the  words. 
Literal  translations,  however,  are  but  slight  helps  to  the 
understanding  of  technical  terms.  And  that  the  term  in 
question  is  technical,  there  is  little  room  for  doubt.  It 
will  be  remembered  that  chapter  21  of  Exodus  contains 
a  code  of  laws  which  prescribe  specific  punishments   for 


THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE  129 

certain  offences.  For  murder,  death  (21.  12);  for  smiting 
a  parent,  death  (21. 16);  for  cursing  a  parent,  death  (21. 17) ; 
for  injuring  a  man  in  a  quarrel,  compensation  (21.  19) ;  for 
smiting  a  slave  with  a  rod  which  produces  death,  nakom 
yinnakem  (21.  20)  ;  for  producing  miscarriage,  punitive 
damages  i^anoshyeanesh)  (21.  22).  The  penalties  are  all 
specific,  and  there  is  no  reason  to  doubt  that  nakom  yinna- 
kem is  likewise  specific.  The  only  difficulty  is  to  dis- 
cover what  it  was.  That  it  was  something  more  than 
punitive  damages,  is  obvious.  It  must  have  been  some- 
thing affecting  the  person  of  the  culprit  with  some  severity. 
The  particular  term  is  unique,  there  being  no  other  in- 
stance of  its  use.  The  root-word  is,  however,  common, 
and  it  always  denotes  punishment  of  a  serious  character. 

In  Judges  (15.  7  and  16.  28)  Samson  uses  it  to  mean 
the  slaughter  of  a  multitude.  In  2  Kings  (9.  7)  Elisha 
uses  it  to  charge  Jehu  with  the  duty  of  destroying  the 
whole  house  of  Ahab.  Jeremiah  uses  it  to  describe  a  day 
of  JHVH's  signal  punishment  of  enemies  (46.  10 ;  50.  15  ; 
51.  '^6).  By  Ezekiel  it  is  used  in  a  similar  sense  (Ezek. 
25.  15),  as  also  in  Esther  (8.  13). 

That  it  cannot  mean  death  is  apparent  from  two  facts : 
first,  the  offender  did  not  intend  to  kill  the  man,  and  was 
therefore  guilty  only  of  manslaughter,  and  second,  the 
same  code  uses  the  technical  term  mot  yumat  in  the 
several  cases  when  the  offence  is  capital.  It  is  true  that 
the  Talmud  (Sanhedrin  52  b)  construed  it  to  mean  '  death 
by  the  sword  \  Its  argument,  however,  though  ingenious, 
falls  before  the  two  facts  already  stated. 

Nor  is  it  likely  to  mean  banishment  from  the  land,  which 
is  nearly  as  severe  as  the  death  penalty,  and  is  moreover 
already  provided  for  under  the  name  of  Sheroshi.  The  fact 
S.  K 


130  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

that  a  new  crime  was  being  created  by  law  must  not  be 
forgotten.  Before  this  law  the  fact  that  the  slave  died 
under  his  master's  correction  was  no  man's  concern.  In 
the  Code  of  Hammurabi  the  death  of  the  slave  rendered 
the  slayer  liable  to  give  the  bereaved  master  another  slave 
in  his  stead.  Other  consequences  there  were  none.  If, 
therefore,  the  master  lost  his  slave  by  his  own  act,  it  was 
his  own  money  he  was  losing.  This  is  good  Babylonian 
law,  and  it  is  one  of  the  ironies  of  history  that  when  the 
Hebrew  law  fought  this  system,  and  won  its  first  great 
triumph  over  it,  the  record  should  be  disfigured  by  the 
intrusion  into  it  of  the  Babylonian  principle  which  it  had 
just  overcome :  '  The  slave  is  but  the  master's  money  ' 
(kaspo  hu)  (Exod.  ^i,  21),  It  and  the  lex  talionis  maxim, 
which  follows  hard  upon  it  (21.  i'>r^y  ^^'^  both  of  them 
good  Canaanite  law.  They  are^  however,  in  direct  con- 
tradiction of  Hebrew  law. 

On  the  other  hand,  it  was  not  to  be  expected  that 
extreme  punishment  should  be  inflicted  for  an  act  which 
men  had  just  begun  to  look  upon  as  an  offence.  This 
view  would  negative  banishment  as  the  punishment  meant 
by  nakom  yinnakem. 

Scourging,  on  the  other  hand,  was  in  ancient  Israel 
fit  punishment  only  for  children,  slaves,  and  paupers,  and 
would  not  be  thought  of  for  men  of  good  condition.  Only 
for  one  offence,  and  that  an  infamous  one,  was  the  punish- 
ment imposed  on  a  freeman  (Deut.  %%.  18).  And  to  this 
effect  writes  Josephus  {Ant,^  Book  4,  ch.  8,  Sec.  21) :  The 
punishment  of  stripes  is  a  most  ignominious  one  for  a 
freeman. 

It  need  not  therefore  be  thought  of  in  this  connexion. 
This   leaves  for   consideration   only  the   question  of  im- 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  131 

prisonment.  There  is  a  very  common  belief  that  the 
ancient  Hebrews  did  not  know  deprivation  of  liberty  as 
a  punishment  for  crime.  Against  the  correctness  of  this 
supposition  there  is  a  mass  of  evidence  which  has  not  been 
sufficiently  weighed. 

Very  significant  is  the  fact  that  there  are  eight  several 
Hebrew  words  denoting  prisons,  and,  moreover,  two  of 
these  words  are  used  in  varying  forms  : 

1.  ha-mattarah  is  used  by  Jeremiah  (3^^.  2,  8,  i:z ;  33.  11  ; 
37.21;  38.6,13,^28;  39. 14, 15);  and  Nehemiah  (3.25;  12.39). 

2.  Masger  is  used  by  Isaiah  (24.  22  ;  42.  7) ;  and  by  the 
Psalmist  (142.  8). 

3.  Bet  ha-pekudot  is  used  by  Jeremiah  (52.  11). 

4.  Bet  ha-bor  is  used  in  Exodus  (12.  29)  ;  and  by 
Jeremiah  {'>,'].  16). 

The  variant  form  bor  is  used  by  Isaiah  (24.  22) ;  by 
Jeremiah  (38.  6,  7,  9,  10,  11,  13);  and  most  significantly 
in  Proverbs  (28.  17)  :  A  man  oppressed  by  blood-guilt 
(dam-nefesk)  will  flee  {yaims)  to  the  bor ;  let  no  man 
stay  him. 

5.  Mishmar  is  used  in  Genesis  (40.  3,  4,  7;  41.  10; 
42.  17,  19);  in  Leviticus  (24.  12);  in  Numbers  (1,5.  34)  : 
*  And  they  put  him  in  mishmar^  since  it  was  not  declared 
what  should  be  done  to  him.'  In  Proverbs  (4.  23) :  '  As 
in  any  prison  [mishmar)  guard  thy  heart;  for  out  of  it 
are  the  issues  of  life.' 

6.  Bet  ha-sohar  is  used  in  Genesis  (39.  20,  21,  22,  23 ; 
40.  3,  5). 

7.  Bet  ka-asirim  (M.T.  astirim)  is  used  in  Judges 
(16.  21,  25). 

The  variant  form  bet  ha-esur  occurs  in  Jeremiah 
{?il'  15),  and  the  form  bet  ha-surim  in  Koheleth  (4.  14). 

K  2 


132  THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE 

8.  Betha-kele'  occurs  in  i  Kings  22.  27  ;  2  Chron.  18.  26  : 
Put  this  man  in  prison  (bet  ha-kele')  and  feed  him  on 
bread  and  water.     And  Jeremiah  uses  it  (^"j,  15,  18). 

The  variant  form  bet  ha-keli  (M.T.  bet  ha-kehU)  occurs 
in  Jeremiah  37.  4 ;  52.  31 ;  while  the  form  bet-kele'  is  used 
in  2  Kings  (17.  4 ;  25.  27),  and  in  Isaiah  (42.  7) :  ^To  open 
blind  eyes,  to  bring  the  prisoner  (assir)  from  the  masger, 
the  dwellers  in  darkness  (yoskebe  koshek)  from  the  bet-kele\' 

Besides  these  undoubted  names  for  prison,  the  Au- 
thorized Version  gives  prison-house  as  the  rendering  of 
bet  ha-mahpeket.  King  Asa  being  wroth  with  Hanani, 
the  seer  (rdeh)  put  him  into  the  bet  ha-mahpeket  (prison- 
house)  (2  Chron.  16.  10). 

When  Pashhur,  the  priest,  was  angered  with  Jeremiah 
for  his  prophecies,  he  put  him  in  the  mahpeket  by  the  upper 
Benjamin-gate  (Jer.  20.  2).  A.  V.  here  renders  not  '  prison', 
but '  stocks \ 

The  word  occurs  but  once  more.  Shemaiah,  the 
Nehelamite,  who  prophesied  in  Babylon  in  a  sense  con- 
trary to  Jeremiah's  prophecies  at  Jerusalem,  wrote  to  the 
priest  in  the  latter  city  to  put  Jeremiah  in  the  mahpeket 
and  in  the  sinok  (Jer.  29.  26),  that  being  the  proper  place 
for  a  meshiiggOL  (madman)  who  prophesies. 

This  mode  of  branding  a  prophet  whose  utterances  are 
displeasing  was  not  a  new  thing.  Hosea  (9.  7),  reproaching 
his  age,  charges  them  with  calling  the  nabi  a  fool  (ewil) 
and  the  inspired  man  {ish  ha-ruah)  a  madman  {meshuggcL), 
And  even  in  our  own  day  the  same  phenomenon  occurs. 
A  statesman  who  advocates  measures  we  do  not  like  is 
often  called  a  paranoiac. 

The  fact  is  clear  that  the  mahpeket  is  spoken  of  only 
in  connexion  with  prophets  whose  utterances  are  distaste- 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  133 

ful  to  those  in  power,  and  who  are  by  the  latter  branded 
as  madmen.  The  conclusion  would  seem  to  be  that  the 
bet  ha-mahpeket  was  a  place  for  the  detention  of  lunatics, 
rather  than  a  house  of  punishment  for  criminals.  Exactly 
what  sinok  means  is  doubtful.  A.V.  renders  'the  stocks', 
but  as  the  word  occurs  but  this  once,  we  can  be  certain 
only  that  it  means  some  place  or  instrument  of  restraint. 

The  common  notion  that  the  ancients  had  no  separate 
institutions  for  the  sick  may  be  questionable.  The  obscure 
text  (2  Sam.  5.  6,  8),  which  describes  the  capture  by  David 
of  the  fortress  of  Jebus,  speaks  of  the  Jebusites'  defiant  cry 
to  David  that  unless  he  could  reach  the  sinnor  and  capture 
the  blind  and  the  lame,  he  would  never  enter  the  place. 
The  sinnor  was  apparently  built  on  the  highest  point  of 
what  was  afterwards  the  city  of  David,  and  the  inference 
is  reasonable  that  it  was  a  place  where  the  blind  and  the 
lame  were  kept.  It  may  be  that  the  sinnok  of  Jeremiah 
and  the  minor  of  Samuel  are  not  totally  unrelated. 
Whether  the  account  was  historically  accurate  or  was 
merely  legendary  by  way  of  explaining  the  origin  of  the 
later  law  that  '  the  blind  and  the  lame  shall  not  enter  the 
temple '  i^iwer  u-piseah  la  yabo  el-ha-bayit :  %  Sam.  5.  8 ; 
cp.  Lev.  %\.  18),  is  a  question.  In  any  event,  the  narrative 
seems  to  indicate  familiarity  with  the  idea  of  segregating 
persons  afflicted  with  certain  infirmities. 

There  is  probably  still  another  name  for  prison,  though 
the  translators  have  hitherto  not  recognized  it.  It  is  bet 
ha-asnppim  (1  Chron.  26.  16).  The  Authorized  Version 
takes  asuppim  for  a  man's  name,  while  the  Revised  Version 
renders  '  the  storehouse '. 

Sufficient  regard  has  not  been  paid  to  the   instances 


134  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

in   which   asaph  means   *  to   imprison '.      Joseph  put   his 
brothers  {zva-yeesoph)  into  mishmar  for  three  days  (Gen. 

42.  17). 

As  prisoners  are  imprisoned,  they  will  be  imprisoned 
in  a  dungeon,  will  be  shut  up  in  a  jail  {vue-ussephu  asephah 
assir  ''al-bor^  we-suggeru  ^al-masger)  (Isa.  24.  22). 

That  there  was  in  Jerusalem  a  house  of  detention 
(which  we  would  call  a  police  station),  to  which  persons 
arrested  for  trivial  offences  were  consigned,  would  appear 
from  certain  passages  in  the  Song  of  Songs,  and  this  may 
have  been  the  puzzling  bet  ha-asuppim  of  i  Chron.  26.  16. 
When  the  lady  of  the  song  dreamed  that  she  went  forth 
by  night  to  look  after  her  beloved,  she  found  him  not, 
but  encountered  unsympathetic  policemen  on  their  beats 
(shomerim  ha-sobebim  ba-ir)^  who  arrested  her  {mesa'uni). 
She  was,  however,  soon  released  {kimat  sheabarti  mehem) 
(Song  of  Songs  3.  3,  4). 

The  current  translations  do  not  say  '  they  arrested  her ', 
but  give  the  rendering  '  they  found '  her,  on  the  theory 
that  masa\  which  usually  means  to  find,  does  so  in  this 
instance.  The  word  also  has  the  meanings  to  catch,  to 
arrest,  to  acquire,  to  take  or  receive.  A  burglar  caught 
in  the  act  (Exod.  22.  i  (2)),  and  a  thief  caught  after  the 
act,  are  both  yimmase'  (Exod.  22.  6,  7  (7,  8)).  The  men 
who  caught  and  jailed  the  Sabbath-breaker  were  moseim, 
wa-yimseu  (Num.  15.  32,  33). 

The  booty  acquired  in  war  is  mascL  (Num.  31.  50). 
All  that  a  man  has  acquired  (his  whole  estate)  is  yimmase 
(Deut.  21.  17). 

Here  are  other  instances  : 

If  a  man  catch  (yimsa)  his  enemy,  will  he  let  him  go  ? 
(i  Sam.  24.  19). 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  135 

They  caught  {wayitnseu)  an  Egyptian  and  brought  him 
to  David  (i  Sam.  30.  11). 

Was  Israel  caught  {nimsd)  among  thieves?  (Jer.  48.  27). 

I  will  surrender  (mamst)  them  each  unto  his  neighbour's 
hand  (Zech.  11.  6). 

If  the  thief  be  caught  {we-nimsa),  he  must  pay  seven- 
fold (Prov.  6.  31). 

And  he  saith  :  Do  not  lower  him  into  the  pit.  I  have 
taken  ransom  {masa'ti  kofer)  (Job  ^'^.  24). 

In  the  Canticles,  therefore,  the  lady  dreams  that  the 
police  arrest  her,  but  do  not  detain  her  long  (3.  3,  4).  In 
her  next  dream,  however,  she  is  not  so  fortunate.  The 
policemen  not  only  arrest  her,  but  beat  and  wound  her, 
and  give  her  in  charge  to  the  policemen  of  the  wall  (shomere 
ha-.homot)^  who  use  her  roughly,  rending  her  dainty 
veil  or  mantle  (5.  7).  One  may  well  believe  that  the 
policemen  of  the  wall  had  a  station  to  which  the  police- 
men arresting  persons  whom  they  considered  disorderly, 
took  their  prisoners.  At  the  station  the  prisoners  were 
of  course  examined,  and  any  endeavour  to  avoid  identifi- 
cation by  covering  the  head  or  face  with  veil  or  mantle, 
would  result  in  damage  to  the  garment. 

That  the  walls  of  cities  were  thoroughly  policed,  and 
that  they  had  houses  built  on  them,  is  certain. 

I  have  appointed  shomerim  upon  thy  walls,  O  Jerusalem, 
who  will  not  be  inactive  {lo  yeheshu)  by  day  or  by  night 
(Isa.  62.  6). 

When  Rabshakeh  shouted  the  menaces  of  Assyria  to 
the  ministers  of  the  king  of  Judah,  the  latter  prayed  him 
to  speak  in  the  Aramaic  tongue,  so  that  those  on  the 
wall  would  not  understand.  Rabshakeh,  however,  rudely 
insisted  on  addressing  his  menacing  words  to  the  yoshehim 


136  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

on  the  wall,  their  purport  showing  that  he  looked  upon 
them,  not  as  a  rabble  of  idlers,  but  as  having  authority 
to  influence  Hezekiah's  actions  (i  Kings  18.  27  ;  Isa.  ^6.  12). 

We  may,  therefore,  fairly  conclude  that  the  wall  of 
Jerusalem  had  a  police  station  to  which  the  shonieriin 
brought  their  prisoners,  who  were  tried  by  the  yoshebim 
there  sitting.  Such  police  courts  are  not  otherwise  un- 
known. There  was  such  a  court  in  one  of  the  prisons 
in  the  city  itself,  where  the  sale  of  certain  land  in  Anathoth 
to  Jeremiah  was  duly  acknowledged  before  the  yoshebim 
that  sat  in  the  prison  court  (Jer.  32.  12). 

Whether  the  lady  of  the  Canticles  was  or  was  not  in 
the  police  station  of  her  dream-city,  is,  after  all,  of  no 
great  importance.  When  we  remember  that  there  are 
at  least  eight  acknowledged  names  for  prison  in  the 
Hebrew  language,  it  is  no  longer  to  be  doubted  that  the 
prison  was  an  institution  of  which  everybody  had  know- 
ledge. Indeed,  in  the  two  capital  cases  for  which  there 
was  no  precedent,  and  which  puzzled  Moses  and  the 
''Edah^  the  accused  were  both  imprisoned  pending  the 
determination  of  the  issue  (Lev.  24.  12  ;  Num.  15.  34). 

Assuming,  then,  that  imprisonment  (deprivation  of 
liberty)  was  well  known  to  the  ancient  Hebrews  as  a  mode 
of  preliminary  or  final  punishment,  the  question  arises 
whether  the  Exodus  Code  provides  for  its  imposition. 
That  the  loss  of  liberty  was  known  to  the  Code  would 
appear  from  the  provision  (21.  13)  for  a  makoin,  to  which 
one  guilty  of  manslaughter  would  go.  This  certainly 
means  that  the  defendant  could  not  stay  at  home,  that  he 
would  have  to  go  to  an  appointed  place  and  live  there. 

This  is  not  a  bad  definition  of  a  state-prison,  however 
the  details  of  its  management  may  differ  from  those  of 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  137 

analogous  modern  institutions.  That  the  separated  city 
of  Deuteronomy  and  the  'ir  miklat  of  Numbers,  which 
succeeded  the  makoin^  were  prison-cities,  we  think  has 
been  demonstrated.  It  is  not,  therefore,  difficult  to  believe 
that  a  person  whose  offence  was  an  inferior  kind  of  man- 
slaughter, would,  as  a  punishment,  be  deprived  of  his 
liberty  for  a  time. 

The  gdel  ha-dam  and  the  Vr  miklat  both  ceased  by 
the  time  of  Jehoshaphat.  Shofetim  and  shoterim,  federal 
appointees,  were  placed  in  each  canton  (ir).  If  there  had 
been  no  prisons  before,  they  became  indispensable  then. 
The  evidence  adduced  warrants  the  conclusion  that  they 
were  not  a  sudden  invention.  The  tradition  implied  in 
the  multiple  names  for  the  institution,  is  perhaps  better 
evidence  than  a  direct  written  statement  would  be. 

In  this  connexion  it  is  pertinent  to  quote  once  more 
the  Proverb  (Prov.  ij8.  1 7) : 

A  man  oppressed  by  blood-guilt  must  go  to  prison. 
Let  no  man  stay  him. 

The  translation  here  given  is  not  that  of  the  versions, 
all  of  which  fail  to  perceive  that  the  word  bor  in  the  text 
means  prison,  being  used  in  that  sense  in  Exodus  (12.  29), 
bylsaiah  (24.22)5  and  by  Jeremiah  (37.16;  38.6,7,9,10,11,13). 
So  read,  it  is  a  popular  legal  maxim,  just  as  if  we  would 
say :  Never  be  bail  for  a  murderer.  Indeed,  the  Septuagint 
comes  very  near  to  adopting  this  as  the  translation. 

On  the  whole,  it  is  probable  that  the  man  whose 
slave  died  under  his  rod  was  punished  by  imprisonment, 
and  that  this  is  what  is  meant  by  nakom  yinnakem. 

Before  closing  the  investigation,  a  word  should  be  said 
about  the  passages  in  Genesis  bearing  on  the  subject  of 
homicide  (Gen.  4.  8-16;  9.  5,  6).      They  are,  as  has  been 


138  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

said,  no  part  of  the  legal  literature.  Cain  slays  his  brother, 
perhaps  in  the  course  of  a  heated  argument.  So  put,  the 
offence  was,  according  to  the  law  of  Exodus  and  the  rest, 
mere  manslaughter.  The  punishment  decreed  is  that  he 
can  no  longer  remain  in  the  land  where  the  offence  was 
committed.  He  must  leave  his  home  and  live  elsewhere. 
The  terrors  of  exile  are  greater  than  he  can  bear,  and 
JHVH  sets  a  mark  on  him  which  will  diminish  its  perils. 
The  sentence,  however,  is  not  modified.  Cain  left  and 
dwelt  in  the  land  of  Nod  to  the  east  of  Eden. 

In  God's  instruction  to  Noah  and  his  sons  after  the 
Deluge,  homicide  is  dwelt  upon.  He  who  kills  a  man 
must  answer  for  it.  Even  a  beast  must  answer  for  the 
blood  of  a  man.  And  the  whole  community  is  responsible 
for  bloodshed  {mi-yad  ish  ahiw  edrosh  et-nefesh  ha-adam). 
And  then  the  general  principle  is  laid  down :  Whoso 
sheddeth  man's  blood  (shofek  dam  ha-adam),  by  man  shall 
his  blood  be  shed. 

In  all  this  there  is  nothing  to  run  counter  to  the  Hebrew 
law  of  homicide  as  we  have  explained  it.  The  words 
shofek  dam  may  be  taken  in  either  one  of  two  senses. 
They  may  refer  to  wilful  murder,  which  must  be  punished 
by  death,  or  the  principle  announced  may  have  no  reference 
whatever  to  human  law.  The  seer,  pondering  on  the 
problems  of  the  world,  may  reflect  that  bloodshed,  whether 
from  malice  or  by  misadventure,  always  brings  misfortune 
in  its  train.  The  Talmud  has  the  same  philosophy  :  With 
what  measure  ye  mete,  so  shall  it  be  meted  unto  you 
(Sotah  8  b).  God's  justice  is  measure  for  measure  {middah 
ke-neged  middah)  (Sanhed.  90  a).  And  Shakespeare  more 
than  once  utters  a  similar  thought.  In  his  Measure  for 
Measure  he  makes  the  Duke  say : 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  139 

'  The  very  mercy  of  the  law  cries  out 
Most  audible,  even  from  his  proper  tongue, 
An  Angelo  for  Claudio,  death  for  death, 
Haste  still  pays  haste  and  leisure  answers  leisure, 
Like  doth  quit  like,  and  measure  still  for  measure.* 
{Measure  for  Measure^  Act  5,  Scene  1.) 
And  in  the  third  part  of  Henry  VI  (Act  2,  Scene  6),  the 
Earl  of  Warwick  speaks  : 

'  From  off  the  gates  of  York  fetch  down  the  head, 
Your  father's  head,  which  Clifford  placed  there. 
Instead  whereof,  let  this  supply  the  room  ; 
Measure  for  measure  must  be  answered.' 
Whether  the  passages  be  legal  or  philosophical,  or  a 
mixture  of  both,  the  law  is  always  kept  in  view.     That 
a  beast  must  answer  with  its  life  for  the  blood  of  man, 
is  the  express  provision  of  the  statute  (Exod.  31.  ^^9,  32). 
That  the  whole  community  incurs  blood-guilt  when  one 
man  murders  another,  has,  we  think,  been  proved  in  the 
second  lecture.     That  the  perpetrator  himself  must  suffer 
is  a  thing  of  course. 

One  fact  should,  however^  be  kept  in  mind.  Shofek 
dam  was  rather  a  literary  form  than  a  legal  term.  Isaiah 
so  uses  it  in  describing  the  general  decadence  of  morals 
(Isa.  59.  7) ;  Jeremiah  does  the  same  (Jer.  7.  6  ;  22.  3,  17), 
as  does  Joel  (4.  (3).  1 9).  This  use  has  even  become  proverbial 
(Prov.  I.  16;  6.  17). 

We  have  now  reached  the  end  of  our  inquiry,  and  it 
remains  for  us  to  give  a  brief  summary  of  its  results. 

About  1280  B.C.  Israel,  under  the  leadership  of  Joshua, 
crossed  Jordan  to  enter  upon  the  conquest  of  Canaan. 
The  conflict  thus  precipitated  was  not  merely  physical ; 


140  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

it  was  in  a  greater  degree  political  or  social,  and  moral  or 
religious.  Two  antagonistic  systems  of  life  were  facing 
each  other.  The  Canaanites  represented  the  antique 
civilization  of  Western  Asia  ;  they  had  cruel  gods  and 
cruel  laws,  despotism  prevailed,  slavery  was  the  corner- 
stone of  their  institutions.  The  Hebrews,  on  the  other 
hand,  held  that  freedom  was  the  true  basis  of  a  state, 
and  law  and  justice  its  purpose.  In  their  scheme  despotism 
had  no  place.  The  chiefs  of  the  state,  by  whatever  name 
known,  could  not  hold  office  without  the  assent  of  the 
people,  nor  could  they  rule  by  mere  will  or  caprice,  but 
by  law. 

The  Hebrews  finally  triumphed,  though  the  contest 
was  long  and  bitter.  By  the  year  1050,  a  fairly  settled 
commonwealth  had  been  established  under  the  rule  of 
the  priest-shophet  EH.  He  was  succeeded  by  Samuel, 
in  whose  time  the  headship  of  the  state  was  transferred 
to  a  king,  Saul  of  the  tribe  of  Benjamin  {c.  1020  B.C.). 
It  was  not,  however,  until  a  quarter  of  a  century  later 
that  Israel  was  thoroughly  united  under  the  reign  of 
David. 

During  the  three  centuries  between  the  crossing  of 
Jordan  and  the  hegemony  of  David,  the  state  was  being 
slowly  cemented.  The  numerous  city-kingdoms  into  which 
it  was  divided  at  the  conquest,  were  deprived  of  their  kings 
and  converted  into  cantons  or  counties  of  the  state.  These 
were  called  ^artin  (cities)  and  were  governed  by  cantonal 
councils  called  ;sikne  ha-ir.  To  these  were  confided 
administrative  and  judicial  powers,  which  were  to  be 
exercised  in  harmony  with  the  federal  constitution  and 
laws.  The  better  to  effect  this  purpose,  Levites  and 
nebiini^    agents   of   the    central    government,  visited   the 


THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE  141 

several  cantons  for  the  purpose  of  instructing  and  other- 
wise aiding  the  local  councils  in  their  work. 

These  measures,  however,  did  not  prove  adequate.  The 
subtle  influence  of  native  customs  and  ideas  affected  the 
cantons,  especially  those  in  the  remote  districts.  The 
worship  of  JHVH  w^as  neither  orthodox  nor  exclusive. 
Canaanite  ideas,  religious  and  legal,  were  absorbed,  and 
a  hybrid  system  resulted,  which  threatened  to  imperil 
church  and  state. 

In  course  of  time,  certain  branches  of  jurisdiction  were 
withdrawn  from  the  local  councils  and  assumed  by  the 
central  government.  Homicide  was  not.  at  first,  one  of 
these.  It  was  at  a  later  period  that  the  conflict  con- 
cerning the  law  of  homicide  became  acute. 

We  do  not  know  by  direct  evidence  what  the  Canaanite 
law  on  this  subject  was.  There  is,  however,  indirect 
evidence.  The  laws  of  the  Babylonian  Hammurabi 
{c.  2250  B.C.)  are  now  accessible  to  us,  and  from  them 
may  be  derived  a  fair  estimate  of  the  legal  notions  prevalent 
in  Western  Asia  at  that  early  period.  The  publication, 
it  is  true,  antedated  the  crossing  of  the  Jordan  by  a 
thousand  years,  and  it  might  fairly  be  supposed  that 
they  had  become,  in  great  part,  outworn.  Before  passing 
judgement  on  this  point,  we  must  remember  that  fifteen 
hundred  years  after  their  publication,  they  were  still  studied 
in  Assyria,  and  five  hundred  years  after  that  were  made  a 
text-book  in  the  Babylonian  schools.  This  shows,  at 
leastj  that  the  leading  principles  of  the  Code  were  still 
accepted,  however  changed  it  may  have  been  in  some 
of  its  details.  It  is  true  that  we  have  no  direct  knowledge 
that  the  people  of  Canaan  ever  accepted  this  Code.  The 
intrinsic  probability  that  it  influenced  them  is,  however, 


142  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

considerable.  Moreover,  there  are  certain  Canaanite 
admixtures  in  the  Torah,  which  have  ah-eady  been  dwelt 
upon,  which  seem  to  point  directly  to  the  Hammurabi 
Code. 

Our  other  indirect  evidence  is  the  Torah.  We  know 
its  legal  principles,  and  when  we  find  them  in  energetic 
conflict  with  hostile  principles,  it  is  fair  to  conclude  that 
the  latter  are  derived  from  the  Canaanite  law. 

Guided  by  these  helps,  we  infer  that  by  the  Canaanite 
law  of  homicide,  the  killing  of  a  man  was  not  a  crime 
cognizable  by  the  state,  but  a  trespass,  which  gave  the 
family  of  the  deceased  a  right  to  redress.  There  was  no 
inquiry  as  to  the  motive,  and  there  were  no  degrees  of 
liability.  This  absolute  right  of  redress  in  prehistoric 
times  was  the  right  to  kill  the  perpetrator  or  an  equally 
important  member  of  his  family.  When  the  perpetrator 
was  killed,  a  right  accrued  to  his  family  to  seek  redress, 
and  so  it  went  on  in  a  continuing  series.  This  state  of 
affairs  we  call  blood-feud  or  vendetta. 

When  the  Hebrews  entered  Palestine,  this  stage  had 
long  been  passed  by  the  Canaanites.  While  the  blood-feud 
persisted  in  theory,  it  was  rendered  practically  nugatory 
by  the  custom  of  compounding  the  trespass  for  money  in- 
stead of  blood.  Such  money  payment  was  called  kofer,  our 
English  '  wergild '.  The  procedure  apparently  was  some- 
thing of  this  fashion :  The  bereaved  family  impleaded  the 
slayer  before  the  zikne  ha-ir.  The  only  question  before 
them  was  whether  the  accused  killed  the  man  ;  the  how 
or  why  mattered  not.  If  he  was  condemned,  the  repre- 
sentative or  go  el  of  the  family  received  a  legal  warrant 
to  kill  him,  unless  the  matter  should  be  properly  adjusted. 
If  there    was   to   be  chaffering  about  terms,  the  culprit 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  143 

sought  sanctuary  in  a  makom,  probably  the  capital  city  of 
his  */r,  though  there  is  reason  to  believe  that  a  makom  in 
any  other  '/r  would  have  availed  as  a  safe  place  of  refuge. 
From  this  vantage-point  the  bargaining  was  conducted, 
the  makom-'^YiQSt  being  the  most  likely  and  convenient 
intermediary.  Unless  the  culprit  and  his  family  were 
very  poor,  the  matter  was  usually  adjusted.  The  go'el 
who  represented  the  family,  was  naturally  interested  in 
improving  their  estate,  since,  if  they  came  to  want,  they 
would  look  to  him  for  help.  The  7nakom-pnGst  of  course 
expected  an  offering  for  his  makom,  if  he  were  honest,  and 
if  the  reverse,  a  honorarium  for  his  services  would  not  have 
been  unwelcome.  These  were  all  the  parties  concerned,  as 
the  state  took  no  cognizance  of  the  crime. 

With  this  law  the  Hebrew  law  came  in  conflict.  It 
declared  that  homicide  could  never  be  a  trespass  (a  mere 
private  injury).  It  was  an  offence  against  God  and  the 
state,  and  its  gravity  in  this  aspect  was  such  that  all  minor 
interests  like  those  of  the  family,  were  wiped  out  and 
annulled.  The  sanctity  of  human  life  was  the  great 
principle,  and  it  had  to  be  applied  thoroughly.  Its  benefits 
were  accorded  to  the  defence,  as  well  as  to  the  common- 
wealth. Killing  was  not  necessarily  murder.  It  might 
have  been  due  to  casualty,  to  misadventure,  to  an  un- 
thinking blow  given  in  hot  blood.  In  such  cases  it  was 
ranked  as  manslaughter,  for  which  the  punishment  was 
internment  away  from  home  in  a  makom^  or  later  in  a 
separated  city,  still  later  in  an  */r  miklat,  and  finally  in 
a  common  prison.  When  the  killing  was  with  intent, 
with  malice  prepense,  it  was  murder,  and  the  sole  penalty 
was  death. 

With   such    principles   kofer   was   irreconcilable.      No 


144  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

guilty  man  could  escape  by  its  means.  If  a  murderer,  he 
must  die ;  if  a  manslayer,  he  must  suffer  segregation. 
Money  could  not  buy  off  either  penalty. 

The  Canaanite  law  and  the  Hebrew  law  were  thus  in 
crass  opposition.  Use  and  wont  are  powerful  forces. 
The  zikiie  ha-ir  were  affected  by  them,  and  murder  must 
often  have  gone  unpunished,  save  by  the  enforcement  of 
money  damages.  The  federal  legates  (Levites  and  nebzini) 
doubtless  secured  some  measure  of  respect  for  the  law. 
In  the  turbulent  times,  before  the  throne  of  David  became 
secure,  this  was  probably  all  that  could  be  accomplished. 
That  great  warrior-king,  after  a  life  of  turbulence,  saw 
clearly  that  what  his  kingdom  needed  was  rest.  In  his 
solemn  charge  to  his  successor,  he  declared  that  the  word 
of  JHVH  had  come  to  him,  announcing  a  son  who  should 
be  a  man  of  rest  (ish  menuhah),  in  whose  days  there 
should  be  peace  and  quietness  (shaloin  wa-sheket)  in  Israel 
(i  Chron.  22.  8,  9). 

And  Solomon  cherished  this  ideal.  So  long  as  the 
powerful  barons  could  murder  for  money,  there  would 
be  no  peace  in  the  land.  Then  began  the  earnest  and 
determined  course  of  law  reform  which  we  have  en- 
deavoured to  describe. 

The  first  step  was  the  abolition  of  the  right  of  sanctuary. 
As  the  go^el  could  now  drag  the  murderer  from  the  altar, 
there  was  no  opportunity  for  protracted  negotiation.  The 
go  el's  demands,  however  ruinous,  would  have  to  be  com- 
plied with.  However  well  designed  the  measure,  it  did 
not  accomplish  its  purpose.  An  ingenious  mako^n-^nQsty 
an  indifferent  or  perhaps  friendly  zikne  ha-ir  council,  and 
a  go'el  keener  for  money  than  for  blood,  could  easily 
manage  to  defeat  the  purpose  of  the  government. 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  145 

The  next  step  was  more  drastic.  The  makom  with  its 
priest,  and  the  family  go  el  were  all  eliminated.  The  right 
of  sanctuary  for  homicide  was  done  away  with.  A  new 
federal  officer,  the  go  el  ha-dam^  was  sent  to  each  canton 
to  watch  the  proceedings  and  to  receive  the  death-warrant 
for  execution  from  the  zikne  ha-ir.  Separated  cities  were 
fixed  upon  as  places  to  which  the  convicted  murderer 
would  go  for  his  appeal,  and  if  he  was  a  mere  manslayer 
to  serve  a  term. 

In  this  arrangement  there  was  but  one  weakness.  The 
separated  cities  had  their  zikne  ha-ir  who  were  in  friendly 
relations  with  many  other  local  councils,  and  who,  more- 
over, were  not  free  from  the  taint  of  Canaanite  assimilation. 

It  would  appear  that  this  statute  was  often  evaded  by 
the  obstinate  adherence  of  the  people  to  the  practice 
of  kofer^  sometimes  in  murder  and  often  in  manslaughter. 
There  seemed  but  one  way  to  remove  the  difficulty  and 
to  assure  the  execution  of  untainted  federal  law. 

This  was  the  course  pursued :  Forty-eight  cities  were 
selected,  jurisdiction  over  which  was  to  be  abandoned  by 
the  respective  cantons,  and  ceded  to  the  federal  govern- 
ment. These  were  the  Levitical  cities,  inhabited  by 
persons  whose  allegiance  to  the  federal  government  and 
its  laws  was  unquestionable.  From  among  these  the  ''are 
miklat  (detention-cities)  were  selected.  The  zikne  ha-ir 
of  these  cities  were,  of  course,  Levites  who  were  capable 
and  willing  to  enforce  the  Hebrew  law.  A  national  court 
(the  *Edah),  sitting  at  Jerusalem,  heard  the  appeals.  In 
this  system  every  weakness  was  eliminated,  except  only 
that  the  zikne  ha-ir  of  the  several  cantons  were  still  the 
court  of  first  instance.  True,  they  had  federal  assessors 
(Levites,  Kohanim)  and  a  federal  sheriff  (the^i?V/  ha-dam)^ 
S.  L 


146  THE   ANCIENT    HEBREW    LAW    OF    HOMICIDE 

and  one  might  fairly  believe  that  in  such  circumstances 
they  could  not  find  a  loophole  to  evade  the  enforcement 
of  the  federal  law,  especially  as  there  was  now  an  express 
statute  forbidding  kofer^  both  in  murder  and  in  man- 
slaughter cases. 

It  is,  however,  this  statute  which  gives  the  clue  to  the 
defect  in  the  system.  The  common  people,  the  family 
go  el  and  the  zikne  ha-ir  were  still  favourable  to  the 
practice  of  compounding  the  felony  of  homicide  for  money. 

That  the  system,  carefully  guarded  as  it  was,  did  not 
perfectly  succeed,  may  be  taken  for  granted.  In  more 
modern  times  and  nearer  our  own  homes,  we  are  not 
totally  free  of  the  sentiment  which  prefers  large  damages 
to  convictions  for  manslaughter.  It  was  Jehoshaphat  who 
finally  tore  up  hofer  by  the  roots.  I  have  in  a  previous 
lecture  described  how  he  abolished  the  jurisdiction  of  the 
zihie  ha-ir  in  cases  of  homicide,  by  establishing  federal 
courts  and  sheriffs  in  every  canton,  with  a  supreme  appel- 
late court  at  Jerusalem. 

Thus  was  the  final  victory  for  Hebrew  law  won  after 
a  protracted  contest  lasting  a  century.  At  last,  about 
850  B.C.,  every  man  knew  that  the  element  of  civil 
damages  or  private  satisfaction  was  eliminated  from 
homicide  cases,  and  that  the  state  alone  had  jurisdiction 
of  this  high  crime. 

And  now  one  final  word.  I  am  well  aware  that  there 
is  room  to  question  many  of  the  definitions  suggested 
and  hypotheses  propounded  in  these  lectures.  It  would 
be  unreasonable  to  hope  for  ready  acquiescence  in  views 
that  run  counter  to  inherited  opinions.  Many  will  think 
the  whole  scheme   of  positing  a  life  and  death   contest 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  147 

between  Canaanism  and  Hebraism  audacious  ;  more,  per- 
haps, will  look  scornfully  upon  the  endeavour  to  date  one 
of  its  most  important  manifestations,  and  to  trace  its 
progress.  With  them  I  have  no  quarrel.  The  endeavour 
has  been  to  look  at  the  facts  honestly  and  without 
prejudice. 

If  the  labour,  which  has  been  one  of  love,  helps  an 
earnest  student,  here  and  there,  to  a  better  understanding 
of  the  Hebrew  law  of  homicide,  makes  clearer  the  function 
and  short  duration  of  the  "ir  miklat,  strips  the  grisly  features 
from  the  Avenger  of  the  Blood,  and  moves  the  Hebrew 
lex  talionis  from  the  solid  ground  of  history  towards  the 
shifting  sands  of  fable,  it  will  have  accomplished  its 
purpose. 


L  2 


NOTE 

The  statement  on  page  45  concerning  the  alah  is  too 
scanty  to  explain  the  meaning  of  Solomon's  prayer. 

Originally  the  word  probably  meant  a  curse.  Other 
meanings  however  developed. 

When  a  master  charged  his  servant  with  a  special  duty 
he  made  him  solemnly  swear  to  perform  it.  This  oath  is 
called  a  shehtah.  Attached  to  this  was  the  penalty  for 
disregarding  the  oath.  This  was  the  curse  or  alah  de- 
nounced by  the  master  against  the  servant  should  he 
prove  recreant  to  his  duty.  Of  this  meaning  of  alah  we 
have  the  classical  example  in  Abraham's  charge  to  Eliezer 
(Gen.  24.  2-41). 

So  when  two  parties  made  a  covenant  or  treaty  {berit) 
the  penal  feature  of  the  transaction  was  the  alah.  An 
example  of  this  is  found  in  the  treaty  between  Isaac  and 
Abimelech  (Gen.  26.  28-31).  Other  instances  of  a  berit 
with  alah  are  to  be  found  in  Deut.  29.  12-28  and  in  Jer.  34. 
13-22,  though  in  the  latter  the  word  alah  is  not  used. 

Here,  however,  we  are  specially  concerned  with  the 
juridical  alah.  In  its  oldest  form  it  seeks  to  procure  a 
confession  from  a  woman  charged  with  adultery  which 
cannot  be  proved.  The  procedure  is  given  in  full  detail  in 
Num.  5.  12-31. 

The  later  development  of  the  alah  is  that  when  a  tort 
has  been  committed  and  the  perpetrator  is  unknown  either 
to  the  injured  party  or  to  the  authorities,  there  is  publicly 
proclaimed  in  the  temple  what  we  would  call  a  subpoena 
to  confess  or  to  testify.  This  is  an  adjuration  to  the  guilty 
party  to  come  forward  and  confess  or  to  any  witness  to 
come  forward  and  testify.  As  the  circumstances  prevent 
the  service  of  such  a  subpoena  upon  any  known  person, 
it  is,  as  it  were,  discharged  into  the  community  by  procla- 
mation (kol  alah).  The  imposition  of  the  penalty  or  curse 
(alah)  must  of  necessity  be  left  to  Heaven.  The  passages 
bearing  on  this  subject  are  i  Kings  8.  31,  32 ;   2  Chron.  6, 

22,  23 ;  Lev.  5. 1-4 ;  Prov.  29.  24. 

148 


BIBLICAL   PASSAGES  CONSIDERED 


Genesis 

PAGE 

Exodus 

PAGE 

4.  8-16  ...   137 

20.  2 

III 

4.  15 

61 

20.  7 

.    104 

4.  24 

61 

20.  13 

21 

9-5  . 

•  33»  57 

20.  22 

37 

9-5,  6 

I 

I3»  137 

21.  I 

37 

10.  9 

38 

21.  2 

III 

12.6 

41 

21.5,6  . 

112 

13-3 

41 

21.6 

37 

13.  4 

41 

21.  12-14,  20-32 

•  22-3 

17.  14 

126 

21.  12-14 

.  36,  40 

24.  2-41 

148 

21.  12 

113,  126 

24.  41 

.   104 

21.12,16,17,19,20,22   129 

25.  27,  28 

38 

21.  13   . 

.   136 

26.  28-31 

148 

21.  14 

•  37,  51 

27-  3'  5,  7j  33 

38 

21.  16 

112 

28.  11-19 

41 

21.  18 

•   133 

39.  20,  21,  22,  i 

23   • 

131 

21.  18,  19,  20  . 

122 

40.  3,  4,  5,  7 

131 

21.  18,  19,  22  . 

121 

41.  10 

131 

21.  19 

126 

42.  17,  19 

131 

21.20   .   114, 

126,  128 

42.17 

134 

21.  20-21 . 

.  36,  61 

48.  16 

59 

21.  20,  21,  26,  27,  32   109 

21.21,23-5   . 

130 

Exodus 

21.  22 

37,  123 

4.  23-6  . 

2 

21.  22-5  .    .  54, 

119,124 

4.  29-30 

8 

21.  28-32. 

104 

5.3  • 

.    83 

21.  28 

.   104 

6.  6  . 

60 

21.  29 

52 

10.  23 

33 

21.  29,  32. 

.   139 

12.  15-19 

126,  127 

21.  30 

•  37,  51 

12.  21 

8 

22.  I  (2)  .    .  23 

,  34,  134 

12.  29 

'Sh  137 

22.  2  (3)  . 

23 

15.  13   . 

60 

22.  3 

.   126 

13-  3»  14  • 

III 

22.  6,  7  (7,  8)  . 

•   134 

15-  13   . 

60 

22.8(9)  .    . 

37,  104 

16.  15 

33 

22.  27  (28) 

37 

17.6 

8 

23-  2,  3,  6,  7,  8,  9 

97 

19.  7 

. 

8  1 

23-  7 

99,  103 

349 


I50 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 


Exodus 

PAGE 

Numbers 

PAGE 

23.  8    .    . 

104 

15-2 

27 

30-  33,  38 

126 

15-  24,  29,  30  . 

82 

30.  38   . 

•    127 

15.  30,  31 

.    126 

31'  14,  15 

126,  127 

15.  32-6  . 

.  9,  128 

15.32,33- 

.    134 

Leviticus 

15-  34   . 

131,  136 

4.  3,  13,  22,  27. 

81 

15.  35,  36- 

•  34,  83 

5.  1-4 

.    148 

18.  20,  23,  24  . 

71 

5.  15 

81 

19.  13,  20. 

126,  127 

7.  20,  21,  25,  2) 

r    126,  127 

26.  62 

71 

17-  4,  9>  14 

126,  127 

27.  i-ii  . 

9 

17.  13   . 

•     38 

31.  2,  3  . 

61 

18.  29 

126 

31.  10 

27 

19.  5-8  . 

126,  127 

31.  19   . 

30 

19.  13,  20 

.    126 

31.  50   • 

•   134 

19.  II 

.    98 

35.  11-33. 

•  25-7 

19.  15   . 

97 

35.  12,  24,  17  . 

73 

19.  16,  17 

.    98 

35.  16-19,  20, 

21   .    84 

19.  18 

61 

35.  16-27. 

.    83 

19.  20 

.   126 

35.  16,  21-3 

•    85 

19-  35   . 

.  98,  99 

35.  16,  17,  18 

•   113 

20.  9,11,12,13, 

16,27    58 

35-  24-37 

86 

20.  5,  17,  18  . 

.   126 

35.  26,  27,  30 

.    87 

20.  18 

.   127 

35.  25 

82 

21.  18 

77 

35-  27   . 

34 

22.  3 

126,  127 

35-  28,  31-4 

74 

22,  23 

.    76 

35-  30   . 

loi,  113 

23.  21,  31. 

27 

35-  33.34- 

57 

24.  10-16. 

9 

36.  I-IO  . 

9 

24.  10-23. 

89,  120 

24.  12 

131.  136 

Deuteronomy 

24.  14 

.    .    83 

I.  16,  17  . 

98,  Id 

24.  14,  23 

34 

4.  41-3  . 

23-4,  63 

24.  17,  21 

29,  113 

5.6  .    . 

III 

24.  19 

.   123 

5.  II 

104 

25.  10 

III 

6.21 

III 

25-  24,  25,  33, 

49   .    60 

7.8.    . 

III 

25.  46 

33 

8.  14 

III 

26.  13 

III 

10.  9 

71 

10.  17,  18 

.    .    98 

Numbers 

12.  2,  3  . 

41 

6-  12-31  . 

148 

12.  12 

72 

6.3.    . 

51 

13.6(5),  II  (i< 

3)    .III 

9-  13 

126, 127 

14.  16 

.    105 

14.  4 

33 

14.  27,  29 

72 

THE   ANCIENT    HEBREW   LAW    OF   HOMICIDE 


151 


Deuteronomy 

PAGE 

Joshua 

page 

16.  18-20 

98 

7.  25 

•  34,  83 

16.  18 

95, 

126 

9.  4  .   . 

.    38 

17.6    . 

87 

10.  13 

61 

17.  6,  7  . 

lOI 

13-  14,  33 

72 

17-  8-13  . 

97 

14.  3 

72 

17.  12 

99 

20.  2-9  . 

.  28,  88 

17.  12,  13 

38 

20.  3 

74,  113 

18.  I,  2  . 

72 

20.  6,  9  . 

75 

18.  20,  22 

38 

21.  18 

73 

19.  3-15  • 

24-5 

19.  6 

69 

Judges 

19.  10 

33,  67, 

103 

6.  30 

83,  lOI 

19.  II 

113 

8.  21 

.    83 

19.  12 

.    .'  68,  75 

14.  4 

39 

19.  13 

33 

15-7 

61,  129 

19.  15 

'  68,*87, 

lOI 

15.  12 

84 

19.  16-21 

120 

16.  21,  25 

•   131 

21.  1-9  . 

32,51,57,90 

16.  28 

61,  129 

21.5 

52 

18.  25   . 

.    84 

21.8 

104 

21.17   . 

134 

I  Samuel 

21.  21 

83 

2.  18,  35  . 

49 

22.  8 

58 

3.  I,  20  . 

49 

22.  18 

126, 

130 

8.  3  .    .    . 

50 

22.  21 

83. 

lOI 

12.  1-5  . 

49 

22.  24 

83 

14.38-42. 

lOI 

24.  5 

104 

19.  2 

.    64 

24.  12,  13 

51 

22.  17,  18 

84 

24.  16,  17 

98 

24.  II 

.    38 

25.  I 

99 

24.  19 

.   134 

25.  2,  3  .   1 

13'  114, 

126 

25.  20 

..   64 

25.  I,  2  . 

104 

26.  21 

81 

25.  II,  12 

124 

30.  II 

.   135 

27.  15-24 

63 

27.  25   . 

99 

2  Samuel 

29.  12-28 

148 

I.  15 

84 

32.  35,  41 

61 

2.  8-23  . 

31 

32.  43   • 

62 

3.  21,  22,  23-7. 

31 

33-  12 

45 

5.  6,  8   . 
7.  14 

.   133 
.   113 

Joshua 

12.  12 

64 

2.  17-20  . 

104 

12.  24 

45 

5.  2-9,  10-12  . 

. 

6 

14.  1-24  . 

91 

7.  14-18  . 

. 

lOI 

14.  7,  n  • 

94 

7.  24 

. 

34 

14.  9 

104 

152 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 


2  Samuel 

PAGE 

Isaiah 

PAGE 

14.  25,  26 

43 

30.  16 

79 

15.  I 

43 

33-  15   • 

.  .    80 

15.4 

104 

34.  8 

61 

20.  18 

92 

35-  4 

61 

22.  48 

61 

36.  12 

.    136 

42.  7 

.    131,  132 

I  Kings 

47-  3 

61 

2.  5  . 

•  30,  31 

59-7 

•    139 

2.25,29,31,32, 

34, 46    84 

59-  17 

61 

2.  26 

72 

59-  19 

79 

2.  28,  29  . 

79 

61.  2 

61 

2-  33 

•    58 

62.  6 

.   133 

3.  9,  12,  28 

44 

63.  4-9  . 

59 

4.   . 

•  44,  67 

63.4 

60 

5.  5  (4.  25) 

44 

7.7. 

44 

Jeremiah 

8.  21 

44 

7.6  .    . 

•   139 

8.  31,  32  . 

.   148 

II.  20 

61 

8.32    . 

45,  104 

13.  14   . 

33 

16.  II 

60 

20.  2 

.   132 

18.  27 

.   136 

20.  10,  12 

61 

21.  10,  13 

70 

22.  3,17  . 

139 

21.  10,  18 

102 

25.  26 

33 

22.  27 

.   132 

26.  15 

57 

29.  26 

.   132 

2  Kings 

30.  II 

104 

5.  1-8   . 

40 

32.  2,  8,  12 

•   131 

7.6  .    . 

33 

32.  7,  8  . 

60 

9-  3»  10  . 

.    78 

32.  10,  12,  25 

102 

9.  7. 

62,  129 

32.  12   . 

136 

14.  6 

.   105 

33-11   . 

•   131 

17-4 

.   132 

34.  13,  14,  17,  i 

22   III,  148 

25,  27   . 

•   132 

37-4 

.   132 

37.  15 

.   131 

Isaiah 

37-  15.  18 

.   132 

I.  24 

61 

37.  16   . 

••   131,137 

5.  13 

.    .    63 

37.  21 

.   131 

5.  23 

.   104 

38.6,7,9,10,11, 

13  131,137 

8.  2  . 

102 

38.  6,  13,  28 

•   131 

10.  3 

,    .    78 

39-  14,  15 

•   131 

13.  II 

.        .    38 

46.  10 

61,  129 

20.  6 

.    .    78 

46.  28 

104 

24.  22 

I3i>i34,  137 

48.  27   . 

135 

28.7 

.    .    81 

50-  15   • 

129 

28.  20 

77 

50.  28   . 

61 

THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 


153 


Jeremiah 

PAGE 

51.6 

61 

51.36        . 

61 

129 

52.  II       . 

131 

52.  31        • 

132 

EZEKIEL 

4.   17 

33 

6.  6  . 

27 

18.  1-32    . 

107 

24.  8           .         . 

61 

24.  23 

33 

25.  12,  14,  15,  17 

61 

25.  15        . 

129 

33-  30        • 

33 

36.  23,  24 

107 

37.  1-14    . 

107 

47.  14 

33 

HOSEA 

9.  7  . 

132 

Joel 

4.  2,  12     . 

100 

4.  (3)  19    • 

139 

4.(3)21    . 

57 

104 

Amos 

2.  6  . 

5h 

104 

2.  7,  8,  12 

51 

5.  10,  12,  15       . 

51 

5.  12 

49, 

104 

5-19 

84 

7.  10,  12  . 

50 

MiCAH 

3.   II 

50 

6.  4  . 

III 

Nahum 

I.  2  . 

61 

I.  3  . 

104 

Haggai 

2.  22         . 

33 

26 


Zechariah 
7.  9,  10 
II.  6 


Malachi 

2.  10 

Psalms 

39-  4  (3) 
94.  21 

Proverbs 
I.  4  . 
I.  16 
4-  23 
6.  17 
6.  31 
6.  34 

8.  5,  12 
13.  24 

17-  15,  23 
17.  23 

18.5,  17 

19-  5,  9 

22.  15 

23.  13 

24.  24 

28.  17 

29.  15 
29.  24 

Job 

9.  20 

33.  24 

34.  17 
36.  12 


Song  of  Songs 
3.  3M 
5-7- 

Ruth 

2.  20 

3.  9»  12,  13 

4.  i-io,  14 


79»  I 


page 

33 

135 


33 


69 
104 


38 
139 
131 
139 
135 

61 

38 

113 
104 

50 
104 
104 
113 
"3 
104 

31,  137 
113 
148 


104 

135 
104 

63 


134,  135 
•   135 


60 
60 
60 


154 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 


Lamentations 

page 

I  Chronicles 

page 

4.  i8         .        . 

.     38 

22.  8,    9  . 

.       144 

26.  16 

133,  134 

ECCLESIASTES 

4.   14 

>3i 

2  Chronicles 

5.6               .            . 

82 

6.  22,  23  . 

.       148 

6.23 

104 

Esther 

16.  10 

132 

8.  13         .        . 

.   .29 

17.2 
17.7 

95 
95,  100 

Ezra 

17.8 
17.  9 

96,  100 

96 

7.  12-26   . 

Nehemiah 

.    125 

18.  26 
19.4 
19-  5,  8 

.       132 

99 

.         96 

3-25 

•     131 

25.4 

•       105 

5-  7  . 

33 

12.  39        . 

•       131 

Talmud  Babli 

Sotah  8b. 

.       138 

I  Chronicles 

Sanhedrin  52  b. 

.       129 

22.  6-9     . 

45 

Sanhedrin 

90  a  . 

.       138 

INDEX 


Abner  .  .  .  .  '  . 
Absalom  .... 
Achan,  case  of  .  .  . 
alah  (oath,  curse,  subpoena)  . 
Amercement 

'am  ha-ares  (federal  high  court) 
Amos  .... 

afiah,  innah  le-yado^  io'anah     . 
Anathoth  (federal  prison  city) 
' anosh  ye  anesh  (punitive  damages) 
anshe  Israel  (leading  men) 
Appeal,  Apellate  Tribunal 

see  Supreme  Court. 
arah  (lie  in  wait)    . 
arur  Code     . 
Asahel,  murder  of 
ason  (miscarriage) . 

Battlement  for  roof 

Berit  (covenant,  treaty) 

bet  ha-asuppim  (prison) 

bet  ha-bor  (prison) . 

bet  ha-pekudot  (prison) 

bet  ha-kele  or  keli  (prison) 

bet  ha-surim^  or  asur  or  asirim  (prison) 

bet  ha-sohar  (prison) 

bet  ha-viahpeket  (prison  or  mad  house) 

bi-bli  da  at  (unwittingly) 
^  Blood,  prohibited  . 
Y^  Blood-covenant 
Oj31ood-feud     . 
'  see  Vendetta  Law. 

~y^    Blood-guilt    . 

Bne-Israel 

bor  (prison)   . 

Bribe,  see  shohad. 


38,39 


63,  64,  65 


46,  47,  48, 

30>  56,  57,  58,  61,  I 

.  •      .      79, 


PAGE 
30,  31 

43'  92,  93 

34 

45,  148 

126 

46,81 

50 

40,  63,  80,  86 

72 

54,  129 

43 

67,74,75,96 

64,  85 

63 

31 

•    53,  54,  122 

58 
148 

133 
131 
131 
132 

131 
131 

32,  133 

,  86,  88 

56 

2,  3,  6 

51,  142 

03,  106 

73.74 
80,  131 


74, 


I 

80 


Canaanite  Law  and  Practice 


7,  35,  41,  ^^^  99,  loi,  102,  104, 
109,  121,  124,  125,  130,  140,  141 


^56 


THE    ANCIENT   HEBREW    LAW    OF    HOMICIDE 


Children  suffer  for  sins  of  parents 

Circumcision 

City  Kingdoms,  see  Vr,  'arim. 

Class  distinction,  in  law 

Covenant  at  Gilgal 


dallim  ..... 
dam^  damim,  see  Blood-guilt 

deme  milhamah  (war  blood) 
David   ..*... 
Death  penalty 


ehah  (enmity) 

ebyonim  .... 

'edah  (Federal  court)      .  34,  73,  75 

seat  of,  in  Jerusalem 
ElTs  Sons      .... 
Elishah  .... 

Elohim  (tribunal)  . 
Enslavement 
Evidence,  law  of    . 
Exile,  see  kareU 
Extradition 

Ezra 

ezrah  (native) 


Federal  Assessors . 

Federal  Courts,  see  "edah. 

Federal  Delegate   . 

Federal  Law .... 

Federal  Sheriff,  see  go* el  ha-dam. 

be-feid  (suddenly) 


PAGE 

04-107 

2,3 

23 

6 
114 


29,  30,  31 

3^  92,  93>  140 
15,  126 


84,  85,  86 
114 
76,82,83,86,99,120,136,145 

82,  88 

49 
40 

37 

126 

68,  70,  87-8,  1 01-2 


.         .  67 

125 

89,  91,  112,  120,  121 


145 


7>35>  5^  52,  144 
89 


85,86 


gctal^  defined 

^^r,  ^^rz>7?  (stranger)  .73, 

Gershom,  son  of  Moses 
Gideon's  trial 

God's  hand  in  human  affairs  . 

go  el  (family  representative)    .  52,  55, 56,  60,  66, 142, 143,  144,  146 

go' el  ha-dam  (Federal  sheriff)  .  55,  56,  58, 59,  60,  62,  d^,  66,  67,  d'^^ 

69,  70,  7i»  73,  74,  75,  78,  83,  86,  88,  91,  92,  93,  94,  95, 

99,  137,  145 
Goring  ox 13,16,52,53 


59.  60 

89,  90,  91,  112,  120,  121 

2 

lOI 

38-40 


ham  lihho  (be  in  earnest) 


69 


THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE  I57 

PAGE 

Hammurabi  Code.     2,  4,  6,  10-21,  46,  47,  48,  54,  105,  107,  108, 

109.  112,  n8,  124,  130,  141,  142 
hataft  damim  (member  of  blood-covenant  guild)        .  2,  3 


Homicide,  state  concern 
justifiable 
by  misadventure 
in  Hammurabi  Code 
see  Manslaughter,  Murder. 

Imprisonment 

'/r,  'arim  (city  kingdoms) 

*ar€  Yehudah 

*ir  {*are)  mtklat  (state  prison) 
83,  86,  87, 

'are  ha-mtiaddah 
ishah  hakamah 
Ishbosheth     . 


Jehoshaphat  . 
Joab 

kalat  (confine) 
karet  (banishment) 
kofcr  (ramom)        .     4,  5,  6,  15,  16 
65,  68,  71,  74,  99 
see  wergild, 
ko/icfi,  kohanim  (priest,  federal  author 


32,  42,  48,  55,  56,  57,  58,  143  ^-- 

29-31.  34 

53 

11-2  1 


.  128,  131,  136 

6,  41,  42,  48,  95,  96,  97,  140 

95,  96 

73.  74,  75.  76,  77.  79,  80,  82, 

88,  95,  99.  137,  143,  M5'  147 

75 

92,  93 

31 


kohcn  ha-gadol  (High-priest)   . 

see  makom-^x\^%i, 
kol  alah  (proclamation  of  the  alah) 


95-9,  100,  146 
•    31,  92,  93,  94,  95 

76,  77 

126-8 

37,  48,  49,50,51,52,55,62, 

no,  121,  142,  143,  145,  146 

ty)  •      49,  51,  72,  90,  96,  97, 

ICO,  125,  145 

73,  76,  86 


Levites 

see  Federal  delegate. 
lex  talionis    . 


148 

71,  72,  140,  144,  145 
2,  3,  4,  19,  20,  104,  115-125,  130 


mahpekety  see  bet  ha-mahpekei, 

makom  (ecclesiastical  section  of  Yr).     37,  40,  41,  42,  65,  68,  75,  77, 

136,  137,  M3 

its  furnishings 41 

makom-Vx\^%\.% 48,  49,  55,  62,  143 

>^.  Manslaughter,  defined 85 

y^     kinds  of         .         .        37-4©,  52,  53,  63,  64,  83,  85,  86,  99 

Wflftz  (arrest) 134 

masger  (prison)      .......  131 

maUarah  (prison) 131 

viiddah  ke-neged  middah  {ycit'X^yix^  iox  xtit^%\xxt)         .  138 


158 


THE   ANCIENT    HEBREW   LAW   OF    HOMICIDE 


> 


PAGE 

Midian 

30 

migrash  (state  territory) 

72 

mtklat,  defined 

76-7 

mishmar  (prison)   . 

131 

viizheah  (altar) 

40,  4i>  77 

moshabot  (districts) 

27 

Murder 

37-40,  52,  83,  85,  99 

>-^  defined  . 

64,84-5 

Naaman 

39>  40 

Naboth,  case  of     . 

70 

nagid  (King's  minister) 

96 

nahalah  (inheritance) 

71-2 

naham,  see  nakam. 

nakam  (avenge) 

59,  60,  61,  62 

nakom  yiiinakem 

.    114,  126,  128,  129-137 

naki  (once  acquitted) 

102,  103,  104 

nebivn,  see  Federal  deleg 

^ates. 

nus  (hasten)  . 

.        .        .        .                77-9 

Oracle  trial    . 

.     8,  45,  68,  89,  loi,  128 

'ormah  (craftiness) . 

37,38,64,84 

oyeb,  see  ebah» 

paga\  be-figo  (strike) 

83,84 

pelilim  (tribunal)    , 

37,54,121 

Police  . 

n^.  136 

Police  Courts 

126 

rashd  (guilty) 

45,  50,  103 

Retaliation,  law  of,  see  lex  talionis. 

sadah  (lying  in  wait) 

38,63 

sediyah  . 

84,85 

saddik  (innocent)    . 

45,  51,  103,  106 

Samson 

39 

Samuel 

42,  40 

Samuel's  Sons 

49 

Sanction  of  law     . 

21 

Sanctuary     . 

.    40,  42,  52,  65,  75,  76,  95,  99,  144 

sard  (stretch) 

77 

sarah  (apostasy)     . 

45j68,  120,  121 

Scourging 

126,  130 

sefer  (document)    . 

90 

sekirim 

114 

ba-seier  (secretly)  . 

63 

THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 


shdar  (court) 
shagah,  shagag  (err) 

bi-shegagah     . 
shehet  (rod)  . 
shebu'ah  (oath) 
shem  (oracle) 
sheroshi  (exile) 

see  karet. 
sho/ek  dam  (murderer) 
shohad  (bribe) 
sirCah  (hatred) 
sinok  (prison) 
sinnor,  see  sinok. 
Slavery 
Solomon 
Subpoena 
Supreme  Court,  in  Jerusalem 

iamak  (receive) 
Tekoah,  woman  of 
Torah,  written  and  oral 


ulam  ha-mishpat  (porch  for  throne) 

Vendetta  Law     .    . 
see  Blood-feud. 

Walls,  guarded      .         .         .         . 
War-blood,  see  deme  viilhamah. 
wergild         .         .         .         .         . 

see  kofer. 
Witnesses      .         .         .         .         . 

see  Evidence,  law  of. 

yad  ramah  (wilful) 
yaphog  lihbo  (disbelieve) 
yazid  (coming  presumptuously) 
yeham  lebabo  (earnest,  zealous) 
yoshebim  (magistrates)     . 

zekenim,  zikne  ha-ir  (elders)  .  7, 
55,  62,  66,  67,  71,  73,  74 
loi,  124,  140,  142,  144, 


159 

PAGE 

51 

81 

80,  81,  82,  88 

113 

148 

33.  34.  44,  89,  120 
129 

138,  139 
49,  50 
84,85 

132,  133 

36,  107-114 

44,  45,  56,  144 

148 

96,  99 

80 
93,  104 

7,  8,9 

44 

46,  47,  48,  51,  69 


135, 136 

3,  4,  5,  6,  47,  48,  50,  121 

68,  70,  75,  loi,  102 


Zipporah 


82 

70 

34,  84 

69-70 

135-6 


32,  35,  41,  42,  46,  48,  51,  52, 
,  75,  80,  82,  87,  88,  90,  93,  99, 
145,  146 

2 


l6o  THE    ANCIENT    HEBREW    LAW    OF    HOMICIDE 

Hebrew  Words  Considered  (which  see)  : 

alah  ;  'am  ha-ares  ;  anah  ;  'anosh  ye  anesh  ;  anshe  Israel ;  arah  ; 
arur ;  ason;  berit ;  bet  ha-asuppim  ;  bet  ha-bor  ;  bet  ha-pekudot, 
bet  ha-kele  ;  bet  ha-surim  ;  bet  ha-sohar ;  bet  ha-??iahpeket ;  bi-bli 
ddat ;  bor  ;  dallim  ;  dam,  damwi,  deme  milhamah  ;  ebah  ;  ebyonim; 
'edah;  ezrah  ;  be-fetd  ;  ga'al;  go' el;  go  el  ha-dam  ;  ham  libho  ; 
hatan  damim  ;  *ir,  *arim,  'are,  Vr  miklaU  'are  ha-mii addah  ;  ishah 
hakamah  ;  kalat;  karet ;  ko/er  ;  kohen,  kohanim,  kohen  ha-gadol  ; 
kolalah;  mahpeket ;  makom  ;  7?iasa  ;  masger  ;  mat t arah  ;  middah 
ke-neged  middah ;  viigrash;  miklat ;  mishmar ;  mizbeah;  moshabot; 
nagid ;  nahalah  ;  naham  ;  nakam  ;  nakom  yinnakem  ;  naki;  nebiim; 
nus  ;  'ormah  ;  oyeb  ;  pagd  ;  be-fig'o  ;  pelilim  ;  rashd  ;  sadah, 
sediyah  ;  saddik  ;  sard  ;  sarah  ;  sefer ;  sekirim  ;  ba-seter  ;  shdar; 
shagah,  shagag,  bi-shegagah  ;  shebet ;  shem;  sheroshi ;  shofek  dam; 
shohad ;  sin  ah;  sinok ;  sinnor  ;  tamak  ;  ulam  ha-mishpat ;  yad 
ramah  ;  yaphog  libbo  ;  yazid ;  yeham  lebabo  ;  yoshebtm  ;  zekenim, 
zikne  ha-ir. 


RETURN  TO  the  circulation  desk  ot  any 
University  ot  Calitornia  Library 
or  to  the 
NORTHERN  REGIONAL  LIBRARY  FACILITY 
BIdg,  400,  Richmond  Field  Station 
University  ot  California 
Richmond,  CA  94804-4698 

ALL  BOOKS  MAY  BE  RECALLED  AFTER  7  DAYS 

•  2-month  loans  may  be  renewed  by  calling 
(510)642-6753 

•  1-year  loans  may  be  recharged  by  bringing 
books  to  NRLF 

•  Renewals  and  recharges  may  be  made  4 
days  prior  to  due  date. 

DUE  AS  STAMPED  BELOW 


NOV  2  0  1996 


ELEY 


2.000(11/95) 


LD  21-      / 


U.C.  BERKELEY  LIBRARIES 


C0Q4aibQ73 


':v\f    t 


^"9 


32«55y 

7 


UNIVERSITY  OF.CAUFORNIA  LIBRARY 


